RE RAJU

CAMP 472/2021

[2022] HKCA 296

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 472 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 2765 OF 2018)

____________

____________

_________________

J U D G M E N T

_________________

Hon G Lam JA (giving the Judgment of the Court):

Introduction

1.  This is an application for extension of time to appeal against the decision of Deputy High Court Judge To (“Judge”) on 6 May 2021[1] refusing to grant leave to apply for judicial review. The intended judicial review is against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”) dated 26 November 2018. In that decision, the Board upheld the decision of the Director of Immigration (“Director”) dated 26 February 2018 rejecting the applicant’s non-refoulement claim.

2.  On 7 October 2021, Deputy High Court Judge Bruno Chan refused to extend time for the applicant to appeal against the Judge’s decision of 6 May 2021.[2]

Background

3.  The applicant is a Bangladeshi national. He apparently entered Hong Kong illegally, and was arrested by police on 1 August 2007 and referred to the Immigration Department on 3 August 2007. He raised a torture claim on 20 August 2007, which the Director rejected on 26 September 2013. His appeal to the Board against that decision by the Director was dismissed on 16 April 2014. The applicant raised his current non-refoulement claim on 3 October 2013.

4.  The applicant’s claim was based on the fear that, if he returned to Bangladesh, he would be harmed or even killed by his wealthy neighbours who forcibly occupied his family’s land, or by the police who pursued false charges that the neighbours filed against him. The factual background was set out at paragraphs 5 to 35 of the Board decision.

5.  By notice of decision dated 26 February 2018, the Director assessed the applicant’s claim on all applicable grounds except torture risk[3] (which had been determined in the earlier decision) and determined it against him. Those remaining applicable grounds are BOR 3 risk,[4] persecution risk,[5] and BOR 2 risk.[6]

6.  The applicant appealed to the Board against the Director’s decision. An oral hearing was held on 12 September 2018 during which the applicant gave oral testimony and answered questions from the Board with the assistance of a Bengali language interpreter. The Board found numerous and material inconsistencies between his evidence at the Board hearing and the information in his non-refoulement claim form. Overall the Board found that the applicant was not a reliable witness and that his claims were not credible and had been fabricated to create a claim for protection. At paragraphs 36 to 44 and 61 to 71 of its decision, the Board noted that it had put the noted inconsistencies to the applicant at the Board hearing, but the applicant was unable satisfactorily to explain them.

7.  The Board found that in any event reasonable state protection was available and internal relocation was viable. The Board therefore concluded that there was no real risk of harm in the event of refoulement, and dismissed the applicant’s appeal on 26 November 2018 with reference to all remaining applicable grounds.

The Judge’s decisions in the court below

8.  On 5 December 2018, the applicant filed a Form 86 to seek leave from the Court of First Instance to apply for judicial review against the Board’s decision. In the Form 86, the applicant set out a number of grounds for judicial review, which the Judge summarized at [13] – [16] of the Form CALL-1 as follows:

“ 13. In his twenty-page application (ie Notice of application for leave to apply for Judicial Review) (“Form 86”), the Applicant quoted statutory provisions and precedents and advanced all possible grounds of review:

(1) procedural unfairness;

(2) unreasonableness or irrationality in the Decision in the public law sense; and

(3) error of law.

The essence of his complaint revolved around the finding of facts by the Board, lack of language and legal assistance and that the Board’s reliance on the Country of Origin Information (“COI”).

14. On procedural unfairness, the Applicant set out four sub-grounds:

(1) the Board had unlawfully fettered its discretion by refusing the Applicant’s appeal on the grounds that they did not satisfy the requirement;

(2) the Board acted in a procedurally unfair manner in dealing with the appeal;

(3) the Board’s decisions to refuse the appeal were unreasonable or irrational in the public law sense or are a result of procedural errors or unfairness; and

(4) the Board failed to meet the greater care and duty owed to a self-represented claimant.

15. Under sub-ground (1), the Applicant accused the Board of having unlawfully fettered its discretion by refusing his appeal on the grounds that he did not satisfy the requirement for non-refoulement protection. This cannot be a valid ground for application for leave. If an applicant did not satisfy the requirement for non-refoulement protection, the Board has no discretion to exercise but to uphold the decision of the Director in the Notice and dismiss the appeal. The real question is whether the Decision of the Board is reviewable for having committed errors of law, procedural unfairness or irrationality in its Decision. The answer to this question will become obvious after considering the other grounds.

16. Under sub-ground (2), the Applicant accused the Board of having acted in a procedurally unfair manner in dealing with his appeal. He did not give any particulars. Scattered in his twenty-page application, he mentioned three points which may be relevant. These are about the COI; psychological report and psychiatric report; and legal and language assistance.”

9.  Following a hearing on 21 April 2021 attended by the applicant, on 6 May 2021 the Judge refused to grant leave to apply for judicial review, for reasons set out at [17] – [29] of the Form CALL-1 as follows:

“ 17. First, he mentioned in page 15 that the Board failed to carry out sufficient research and inquiry into the COI. At page 17 to 19, he accused the Board of failing to take sufficient steps to obtain further COI and put proper weight on human rights situation in Bangladesh at the time of the Applicant’s threatened torture and threats to his life and subsequent killings. He mentioned three COI in particular, namely: USHR 2010, USRF 2010 and the International Commission of Jurists (“ICJ”) Report on the ICJ Mission to Bangladesh (the “ICJ Report”). His accusations are empty assertions. He did not say what was the human rights situation which the Board should have inquired into. When asked what the USHR 2010, USRF 2010 and ICJ report were about, he could not answer. He said he did not remember. Then, he said his friend helped him to complete the Form 86. He had no idea what those COI are about. Through its own research, the Court was unable to find out what USHR 2010 and USRF 2010 are. Though the Court was able to access the website of ICJ, it was unable to find anything helpful to the Applicant’s case. The Applicant also complained about the Board relying on COI which were outdated and news which were not officially recognized or were hearsay. Again, he did not give particulars. The Court was unable to find the Board had placed any reliance on any news in reaching its Decision. But in any event, these human rights situation and COI are totally irrelevant when in the first place the Applicant failed to prove his life was at risk. The Board had rejected his evidence about his dispute with his neighbours, their threats and assault.

18. Second, as for his complaint about the Director’s or the Board’s failure to call for psychiatric and psychological evaluations on his person, it is all the more ridiculous. There was never any indication in his supplementary claim form or at the screening interview that he suffered any such condition as a result of ill-treatment in Bangladesh. He never mentioned anything to that effect before the Board either.

19. Third, he complained about lack of legal representation and language assistance in preparing and attending the oral hearing before the Board. He said it was procedurally unfair that the appeal bundle was provided to him only a few days before the appeal.

20. In Re Zafar Muazam,[7] Re Zunariyah,[8] Re Zahid Abbas,[9] Re Tariq Farhan,[10] and Re Lopchan Subash,[11] the Court of Appeal held that neither the high standard of fairness laid down in Sakthevel Prabakar v. Secretary for Security[12] nor the judgment of FB v. Director of Immigration[13] prescribes that a CAT claimant or a claimant of BOR 2 or BOR 3 or persecution risks has an absolute right to free legal representation at all stages of the proceedings. What is important is whether his rights were not prejudiced for want of legal and language assistance.

21. The Applicant had the benefit of legal representation by the Duty Lawyer Service and interpretation services of a qualified interpreter in preparing his supplementary claim form and at the screening interview and in presenting his case to the Director. He also had the services of a qualified interpreter at the oral hearing before the Board. He complained that the appeal bundle was only provided to him a few days before the appeal and he did not have sufficient time to prepare for the appeal. The appeal bundle is basically made up of his supplementary claim form, the record of the screening interview and the decision of the Director in the Notice, including the COI. His case as presented by his legal representative were also before the Board. He certainly knew what were in the supplementary claim form and the record of the screening interview. The Notice of the Director was issued to him on 26 February 2018. It was not until 12 September 2018 that the oral hearing was held. The Notice is in English, though unfortunately, no translation was provided. He cannot expect these documents to be fully translated for him. He had in between the issue of the Notice and the oral hearing about seven months to seek assistance from among his own circle. Indeed, he had access to interpretation services as reflected in his affirmation and Form 86 filed in connection with this application which were very well written in English. Also, he could have sought assistance from the interpreter at the oral hearing before the Board. That the appeal bundle was only provided to him a few days before the hearing caused no prejudice to him. His complaint is grossly exaggerated.

22. He complained that the Decision of the Board dated 26 November 2018 was only received by him on 3 December 2018 and the secretariat of the Board refused to notify him the result on the phone. It is not known why it took a few days for the Decision to reach him. It may be because he had not given a complete correspondence address to the Board or there were other reasons. The secretariat of the Board had not been invited to respond. In any event, the Applicant suffered no prejudice. He was able to lodge his application for leave to apply for judicial review well within time.

23. As for sub-ground (3), the Applicant’s complaint is basically against the Board’s finding of facts, which is exclusively a matter for the Board as the tribunal of fact. The role of the court in judicial review is not to re-assess the non-refoulement claim afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration.¹¹

24. As outlined above, the Board set out the applicable legal principles and identified the issues correctly. It bore in mind the burden of proof of fear and risk is on the Applicant and that the standard of proof is a relatively low one. It had regard to the provisions of section 17 of the Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme when assessing credibility of the Applicant. It reminded itself of the leading authorities on assessing the claims made by a person seeking protection; that decision-makers should be sensitive to the potential difficulties faced by asylum seekers in putting forward their claims; and that decision-makers should adopt a reasonable approach to make their findings with regard to credibility, and afford the benefit of doubt to the asylum seekers who are generally credible but unable to substantial all of their claims. It gave ample opportunities to the Applicant to explain the inconsistencies in his evidence and gave him ample allowance for failure of memory through lapse of time.

25. Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court was unable to find anything to suggest that the Board’s assessment of the Applicant’s credibility was the result of any errors of law or procedural unfairness or was unreasonable or irrational. On the basis of the evidence, it was entirely open to the Board to reach the Decision as it did.

26. As for sub-ground (4), it is just an empty assertion. The Applicant gave no particulars as to the way in which the Board was alleged to have failed to meet the greater care and duty owed to the self-represented Applicant. For same reasons as in the preceding paragraphs, the Court cannot find any substance in this complaint.

27. As for Ground (2), it has basically been dealt with under Ground (1) sub-ground (3): see paragraphs 23 to 25 above. It appeared from page 16 of his application that the Applicant’s focus under this ground is on the COI. He complained about the Board cherry-picking and taking into account and putting weight on COI which were of little or no relevance; failed to evaluate and make a finding of facts as to whether there exists in Bangladesh a consistent pattern of gross flagrant or mass violations of human rights; failed to assess whether state protection exists in Bangladesh. As explained above, the Applicant having failed to discharge the burden of proving his fear and that his life is at risk, the Board did not find it necessary to consider or give much weight to all those COI or state protection. The Board did comment on internal relocation as an option. But that was on an “even if” basis, ie assuming that the Applicant’s risk was real, which the Board did not accept. That comment is not necessary for the Board’s Decision.

28. Under Ground (3), the Applicant complained the Board had misdirected itself on the law by taking into account that the Applicant had to have experienced torture in the past in order to establish substantial grounds to believe that there was a risk of torture in the future. The Court was not able to find such direction having been given by the Board. Having rejected the Applicant’s evidence about his dispute with the powerful neighbours and his evidence of having been assaulted by them and their associates, the Board did not find it necessary to assess the risk of torture in the future and to so direct itself.

29. As for the overall or general complaint about irrationality and unreasonableness in the Board’s finding, these grounds of complaint are against the finding of facts by the Board. As already explained above, the function of the court in judicial review is not to re-assess the non-refoulement claim afresh. The court will only scrutinise the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality. Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly set out the law and key legal principles relating to the remaining three applicable grounds under the USM; and observed a very high standard of fairness. It was on that basis that the Board found there was no factual basis to support the Applicant’s claim for non-refoulement protection under any of the remaining three applicable grounds. The Decision of the Board was utterly without fault.”

10.  The applicant did not appeal the Judge’s decision within the 14-day period prescribed by rules of court. Belatedly, on 2 June 2021, he took out a summons to seek an extension of time to appeal. At the hearing of the summons on 24 September 2021, the applicant explained that he was unrepresented and did not know how to make an appeal; he had to find a friend to help him with his application, by which time he was late for his intended appeal.

11.  DHCJ Bruno Chan noted that the delay was not substantial and thus proceeded to consider the substantive merits of the intended appeal. In his decision dated 7 October 2021, DHCJ Bruno Chan dismissed the summons on the ground that he did not see any prospect of success in the intended appeal.

The renewed application before this Court

12.  On 20 October 2021, the applicant took out a summons seeking from this Court an extension of time to appeal against the Judge’s refusal to grant leave for judicial review. In his supporting affirmation, he stated that the Judge was wrong in law in holding that there was no state acquiescence or involvement, and that the Judge failed to provide detailed reasons for his decision.

13.  The applicant lodged written submissions on 1 November 2021. Those submissions however largely consist of general statements of legal principles and passages quoted from authorities and statutes, without any explanation as to how they specifically advance the applicant’s case. The applicant also submitted that the Board erred by simply trying to see whether it could find fault with the Director’s decision, that the Board failed to scrutinize the Director [sic] and that it is a general practice of the Board not to question or find fault with the Director’s decision. In addition, he submitted that the Board ought to have considered country of origin conditions.

14.  Having considered the available materials, we consider it appropriate to deal with the application on the basis of documents alone without an oral hearing.

Discussion

15.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court (Cap 4A), an applicant has 14 days to lodge an appeal against a judge’s refusal to grant leave to apply for judicial review. In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will have regard to: (1) the length of delay; (2) the reasons for the delay; (3) the intended appeal’s prospect of success; and (4) the prejudice to the respondent if an extension of time were granted.

16.  The applicant’s intended appeal was late by 13 days. As the delay was not lengthy and the applicant was not legally represented, we have in the circumstances simply proceeded to decide the present application on the basis of the merits of the intended appeal.

17.  In assessing the merits, we have regard to the legal principles which this Court has adopted in dealing with appeals in non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11]. In particular, the role of the Court in a judicial review is not to provide a further avenue of appeal. The Court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board. In the determination of an appeal against the refusal of leave by the Court of First Instance, the Court of Appeal will only examine the decision of the judge in light of the grounds advanced by the applicant. If no viable ground is put forward to reverse the judgment below, the appeal should be dismissed. It is not the role of this Court to examine the decision of the Board afresh as if the appeal were a fresh application for judicial review.

18.  In the present case, the Board rejected the applicant’s non-refoulement claim due to its adverse finding on the applicant’s reliability and credibility, concluding that he had fabricated his allegations. The Board also found in any event that reasonable state protection was available and internal relocation was viable. As such, the Board found that there was no real risk of harm in the event of refoulement. Based on the facts and evidence of the case, these findings are within the province of the Board.

19.  The grounds put forward for judicial review had been comprehensively considered and addressed by the Judge as shown by his reasons contained in the Form CALL-1. We reject the applicant’s argument that the Judge had failed to provide detailed reasons, which is simply incorrect. His other argument raised in his affirmation that the Judge was wrong in holding that there was no state acquiescence or involvement is difficult to understand, as the Judge did not make such finding. In fact the Board had pointed out that unlike a claim under the Convention Against Torture, for BOR 3 risk there was no requirement for a level of involvement or acquiescence by a State official for an act to qualify as torture or ill-treatment, although it must be shown that the State authorities are not able to obviate the risk by providing appropriate protection.[14]

20.  As mentioned above, the applicant’s written submissions fail to set out any grounds of appeal against the Judge’s decision or demonstrate any error on the part of the Judge. The criticisms against the Board in those submissions are simply bald assertions which are unparticularised and devoid of substance.

21.  For these reasons, we do not see any prospect of success in the intended appeal. We will not extend time for a hopeless appeal. The applicant’s summons dated 20 October 2021 is accordingly dismissed.