YUSUK PRAWIT v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

CAMP 119/2023, [2023] HKCA 935

On Appeal From [2022] HKCFI 869

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 119 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO 1689 OF 2021)

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J U D G M E N T

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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”) dated 4 April 2022 refusing to grant leave to apply for judicial review.[1] The intended judicial review is directed against the decision of the Torture Claims Appeal Board / Adjudicator of the Non-refoulement Claims Petition Office (“Board”) dated 18 June 2020.  In that decision, the Board dismissed the applicant’s appeal against the decision of the Director of Immigration (“Director”) dated 3 October 2017 rejecting his non-refoulement claim.

Background

2.  The applicant is a national of Thailand born in 1987.  He entered Hong Kong as a visitor on 28 July 2013, but had overstayed his permission to remain since 27 October 2013. On 9 January 2014, he was arrested for theft, possession of a dangerous drug, breach of condition of stay by overstaying, and possession of an identity card relating to another person.  On 17 April 2014, he was convicted and sentenced to 12 months’ imprisonment.  He raised a non-refoulement claim by written representations on 4 April and 16 May 2014.  His claim is based on the fear that if he returned to Thailand, his life would be in danger because he had worked as an informer to facilitate the Thai police in arresting drug dealers.

3.  The applicant’s claim was initially assessed by the Director with reference to three relevant risks, namely, BOR 3 risk,[2] persecution risk,[3] and torture risk.[4]  By a notice of decision dated 4 May 2016, the Director rejected the claim.  The applicant appealed against that decision to the Board and attended a hearing before the Board on 26 September 2016 at which he gave evidence and answered the Board’s questions.  In its written decision issued on 14 October 2016, the Board found that the applicant’s credibility had been adversely affected by contradictions and implausible assertions in his evidence.  As a result, the Board rejected the applicant’s claim that he was a police informer, and concluded that the applicant had not established any of the three risks concerned.  Accordingly, the appeal was dismissed.  There was no application to the court for judicial review of this decision of the Board.

4.  By letter dated 15 September 2016, the Director invited the applicant to submit additional facts relevant to BOR 2 risk,[5] and the applicant made representations by letters subsequently, stating that certain persons had come to the applicant’s house in Thailand and asked his mother where he was and that the Thai police had told the applicant’s mother and uncle not to let him return to Thailand because the police could not protect him on a 24-hour basis.  By notice of decision dated 3 October 2017, the Director rejected the applicant’s claim for protection with reference to BOR 2 risk.

5.  The applicant appealed to the Board again against the Director’s second decision.  An oral hearing was held on 12 May 2020, at which the applicant gave evidence and answered the Board’s questions.  The Board found that the applicant’s assertion that several men had gone to his house to look for him was implausible, and that in any event his failure to seek state protection was unreasonable.  The Board also did not see any basis for thinking that the gang was still in existence or active or was still interested in the applicant after all these years.  As a result, in its written decision issued on 18 June 2020, the Board dismissed the appeal and affirmed the second decision of the Director. 

The Judge’s decisions in the court below

6.  Long after the 3-month time limit prescribed by Order 53 rule 4(1) of the Rules of the High Court (Cap 4A) had expired, on 1 November 2021, the applicant filed a Form 86 to seek leave from the Court of First Instance to apply for judicial review of the Board’s second decision dated 18 June 2020, without specifying any grounds in that form or in the accompanying affirmation.

7.  The Judge, having considered the application on the basis of the documents alone as he was entitled to given that the applicant had not requested an oral hearing, issued his decision in writing on 4 April 2022, refusing to grant leave to apply for judicial review.  The reasons were set out at [13] – [20] of the Form CALL‑1 as follows:

“ 13. The role of the court in judicial review is not to re-assess the non-refoulement claims 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.[6]

14. In the absence of specific grounds of application, the Court could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision. The essence of the Applicant’s complaint is that he disagrees with the finding of the Board that it is safe for him to return to his home country. In effect, he is seeking to challenge the Board’s finding of fact that he would not face any real harm or risk if returned to Thailand.

15. Having rigorously examined the 2020 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 four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness. The Board found the Applicant not credible and that he had failed to prove the factual basis to support of his case. It was on that basis that the Board found that he has failed to prove his entitlement to non-refoulement protection under any of the four applicable grounds. The 2020 Decision did satisfy the enhanced Wednesbury test. It was not Wednesbury unreasonable or irrational. Basically, the Applicant failed to discharge his burden of proving his fears and risks. These are finding of facts which are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality. The 2020 Decision was utterly without fault. The proposed judicial review has no realistic prospect of success.

16. Order 53, rule 4(1) of the Rules of the High Court provides that an application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when the grounds for application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made. An application made after three months is deemed to have been made with undue delay. To obtain extension of time for making an application, he has to satisfy the Court that there are credible valid explanations for the delay.

17. In AW and Director of Immigration and William Lam[7], the Court of Appeal held that what may constitute a good reason for extending time cannot be defined. In most cases, this would be a “multi-faceted question” the answer to which would depend on the circumstances of each case. The following factors, which are not exhaustive, are likely to be of significance:

(1) length of delay;

(2) explanation for the delay;

(3) merits of the substantive application;

(4) prejudice to the applicant if time is not extended, and the prejudice to the respondent and to public administration if a challenge is allowed to proceed out of time; and

(5) whether the application raises questions of general public importance, and whether those questions are likely to have to be resolved by the courts in any event.

18. By the time the Applicant filed his application, it was more than thirteen months out of time. The delay is very substantial. He did not give any explanation for the delay. The Court could have invited him to give an explanation. For the same reason as given in the following paragraph, this is going to be a futile exercise and is unnecessary.

19. As explained in the above sections, there is no prospect of success in the intended judicial review. It must necessarily follow that the Applicant will suffer no prejudice if extension of time is not granted. If granted, the proposed respondent will suffer prejudice having to incur costs and time to resist an application which is doomed to fail. On the other hand, the access to court by other non-refoulement claimants will be delayed. Besides, the application does not raise any question of general public importance. Hence, leave to apply out of time will not be granted.

20. As the Applicant’s application for leave to apply for judicial review was late and no leave would be given for him to file it out of time, the application is refused.”

8.  The applicant did not appeal within the 14-day period prescribed by Order 53 rule 3(4) of the Rules of the High Court, but took out a summons only on 13 October 2022 to seek an extension of time to appeal against the decision of the Judge.  Pursuant to the Judge’s directions, the applicant filed a statement of his intended grounds of appeal dated 9 January 2023.

9.  Having considered the application on the basis of the written materials, on 13 March 2023, the Judge issued his decision in writing refusing to extend time.[8] The Judge noted that the applicant had failed to give any explanation for his very substantial delay and that there was no prospect of success in the intended appeal.  At the end, the Judge considered the application to be an abuse of process, and dismissed it, giving inter alia these reasons:

“ 6. His grounds of appeal are more directed at the propriety of the Board’s Decision than at this Court’s decision refusing his Leave Application. Nevertheless, they will be considered in both contexts. The thrust of his grounds of appeal is procedural unfairness and irrationality arising from lack of legal representation and language assistance. He argued that as a result he had “a hard time to formulate what [he] wanted to say in English”. He submitted that the high standard of fairness obliged the Board “to make sure that [he] will not face grave human rights breaches”. Despite his convoluted English, the Court understands him to complain about lack of interpretation service at the hearing of the appeal which affected the accuracy of the evidence which he wished to express and that in turn resulted in the Board rejecting his evidence. It was therefore procedurally unfair.

7. It is well settled legal principle that a non-refoulement claimant does not have absolute right to free legal representation at all stages of the proceedings: see Re Zafar Muazam[9], Re Zunariyah[10], Re Zahid Abbas[11], Re Tariq Farhan[12], and Re Lopchan Subash[13]. The Applicant was legally represented up to the conclusion of the screening interview, though not at the appeal before the Board. In Re Karamjit Singh[14], the Court of Appeal held that the high standard of fairness does not require provision of interpretation service at any time an applicant desired or required. The question is whether anything went amiss as a result of lack of interpretation service. To the Court’s knowledge, interpretation service is invariably provided in all stages of the non-refoulement proceedings up to and including the hearing before the Board.

8. The Applicant had the services of an interpreter in preparing his claim and in his screening interview. He now complains he was not provided with interpretation service and that resulted in an adverse finding against him. He had not made this complaint in his Leave Application. This ground is hardly credible. But if substantiated, it would entitle him to success in the judicial review. Because of the significance of this ground, this Court called for the recording of the hearing from the secretariat of the Board. The appeal was heard by the Chairperson of the Board. Having heard the recording, this Court is satisfied beyond any doubt that a Thai/English interpreter had attended the hearing, the Applicant sworn in Thai with the assistance of the interpreter, the Chairperson explained the procedure in English which was interpreted to the Applicant in Thai, and the Applicant responded to the questions put by the Chairperson in Thai which was interpreted to the Chairperson in English. The proceedings were conducted smoothly. There is no indication in the recording that the Applicant was inhibited from presenting his case by reason of his language disability. There is absolutely no substance in this ground.

9. As for the difficulties created by his being held in custody, the Applicant had not given any particulars. It is difficult to see how being held in lawful custody, as the Applicant was, could have given rise to any issues of procedural unfairness and irrationality in the Decision.

10. The Applicant’s other grounds are challenges against the finding of fact and his credibility by the Board, which this Court may not intervene, save for errors of law, procedural unfairness and irrationality in the Decision: see Nupur Mst v Director of Immigration.[15]

11. The Applicant had not advanced any grounds of judicial review in his Leave Application. As explained in paragraph 14 of the Form CALL-1, in the absence of any proper ground of application, his Leave Application had to be considered by this Court undergoing a vigorous examination of the Board’s Decision with anxious scrutiny for errors of law, procedural irregularity and irrationality in the Decision. The essence of the Applicant’s complaint is that he disagreed with the finding of the Board that it is safe for him to return to his home country. He was seeking to challenge the Board’s finding of fact that he would not face any real harm or risk, if returned to Thailand. The Board found the Applicant incredible and did not accept his evidence that he would face any real risk of harm upon his return to Thailand. It also found state protection available. The Board’s Decision is basically a finding of fact which the Court in a judicial review will not interfere save for errors of law, procedural unfairness and irrationality in its Decision. For reasons as explained in paragraphs 13 to 15 of the Form CALL-1, this Court could not find any such vitiating elements and, hence, refused his Leave Application.

12. The Applicant is, in effect, seeking to challenge this Court’s finding that the Board’s Decision had not been tainted by any of the above vitiating elements which is the sole ground for which this Court may review the Decision of the Board; but he has not provided any arguable basis for challenging this Court’s finding. Having rigorously re-examined the Decision, the Form CALL-1 and all the papers with anxious scrutiny, the Court is unable to detect any such vitiating elements. Thus, the Applicant’s intended appeal has no prospect of success.

13. The Applicant has a history of delay.  He was almost fifteen months late in his Leave Application and almost six months out of time for appeal.  Despite the Court’s direction, he has offered no explanation for the late appeal.  His ground of appeal on the basis that he was not provided interpretation service at the hearing before the Board was fabricated.  His conduct reflected not only his recognition that he had no reasonable ground of appeal but also an absence of a genuine intention to prosecute his appeal.  His application is an abuse of legal process.”

The renewed application before this Court

10.  By summons filed on 23 March 2023, the applicant made an application to this court for extension of time for him to appeal against the decision of the Judge refusing to grant leave for judicial review.  In his written submissions lodged on 4 April 2023, the applicant says that despite the authorities’ decisions, the same level of threat exists for him.  He says the Board failed to make sufficient inquiry before finalising the decision and failed to make enquiries of the Thailand authorities.  He asserts that the Board refused his appeal without any reason.  He adds that his elder sister is a Hong Kong citizen and suffering from cancer and there is no one to look after her child who is a minor, and so the applicant requests to be allowed to stay with her.  In addition, he has attached five handwritten pages in the Thai language, the gist of which may be summarised from the English translation that we have called for as follows.

11.  The applicant stated that he wanted to write in Thai, his first language, for clarity, so that he could explain more clearly than using English.  There were a lawyer and a Thai interpreter assisting him in the initial application process.  He told them his story about why he could not go back to Thailand.  After his claim was rejected, he had no assistance from any lawyer or interpreter, and he only had some fellow detainee friends in the detention centre to assist him in writing a letter and having it sent out in 2016.  There was assistance from a Thai interpreter during the interview [presumably referring to the Board hearing] but the applicant “was not able to answer it well enough and some of the questions I was not able to answer at all because those questions were related to the story that someone else wrote down for me and I heard them for the first time during the interview”.  The applicant said he was not aware that the content of the letter he sent out contained parts that were “made up”.  He said that was all his fault, and he asked for forgiveness and a chance to turn over a new leaf.  When his claim was rejected again in 2020 [presumably referring to the second decision of the Board], he did not know he had to appeal within 14 days.  After he got the form [presumably referring to the Form 86] at Hei Ling Chau where he was serving his sentence, he did not know how to fill it in.  Eventually he got help from a person who helped him fill in the form based on that person’s own knowledge.  Up to now, the applicant did not know why his claim was rejected.  From the beginning he had told his lawyer and the Thai interpreter that he could not go back to Thailand because if he went back he would die.  He wanted his case to be reconsidered and to start filing his claim from the beginning.  He wanted to have a lawyer and Thai interpreter assigned to him and to assist him in starting the claim.  He had a family living in Hong Kong.

12.  Pursuant to Order 59 rule 14A of the Rules of the High Court, we find it appropriate to determine this application on the basis of the written materials without an oral hearing.

Discussion

13.  Pursuant to Order 53 rule 3(4) of the Rules of the High Court, an applicant has 14 days to lodge an appeal against a judge’s refusal to grant leave to apply for judicial review.  The delay in this case is substantial.  In these circumstances the court will refuse to extend time unless there are real prospects of success in the intended appeal.

14.  Having considered the available materials, we are satisfied that extension of time should be refused because of the lack of merits in the intended appeal.  In the present case, having heard and discussed the evidence with the applicant, the Board concluded that his evidence was unreliable.  This is a conclusion that the Board, as the primary decision-maker, was entitled to come to, for the reasons it gave in its decision.  It has to be borne in mind that judicial review is not a further avenue of appeal.  The court does not rehear the appeal to the Board on the merits and is concerned only with the legality of the Board’s decision.  The court has no power to impugn the Board’s decision unless it is vitiated by some public law error, such as misdirection in law, procedural unfairness, or irrationality in the decision.  The applicant has failed to establish any such public law grounds.

15.  The role of this court on appeal from the Court of First Instance is not to rehear or re-consider the application for leave to apply for judicial review, but to deal with an appeal or application for extension of time to appeal based on the grounds of appeal advanced.  The language problems that the applicant has referred to in his handwritten letter have been dealt with by the Judge in his decision refusing to extend time, as set out above.  The Judge actually called for the recording of the hearing before the Board and, having heard the recording, was satisfied that the proceedings were conducted smoothly with Thai-English interpretation. The applicant has failed to advance any grounds to show how the Judge is said to have erred in refusing to extend time and to grant leave for judicial review. Having considered the materials available, we share the Judge’s view that there is no merit in the application for leave to apply for judicial review.  There is simply no basis for the applicant’s request to be allowed to re-start his non-refoulement claim process all over again.

16.  We do not see any prospect of success in the intended appeal.  The applicant’s summons is accordingly dismissed.