RE SOHEB MD

CAMP 590/2021

[2022] HKCA 1176

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 590 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 826 OF 2019)

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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”) on 29 June 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 15 March 2019.  In that decision, the Board upheld the decision of the Director of Immigration (“Director”) dated 27 June 2018 rejecting the applicant’s non-refoulement claim.

2.  On 28 October 2021, Deputy High Court Judge Suffiad refused to extend the time for the applicant to appeal against the Judge’s decision of 29 June 2021.

Background

3.  The applicant is a Bangladeshi national.  He claimed to have entered Hong Kong illegally on 5 February 2017.  He surrendered to the Immigration Department on 8 February 2017, and made a claim for non-refoulement protection by written representation on 9 April and 10 May 2017.  His claim, summarized at paragraph 19 of the Board’s decision, was based on the fear that, if returned to Bangladesh, he would be harmed or killed by members of the Awami League because he was an active member of the Bangladesh Nationalist Party (BNP) and an official of its youth wing, Jubo Dal.

4.  By notice of decision dated 27 June 2018, the Director assessed the applicant’s claim on all applicable grounds and determined it against him.  The applicable grounds are BOR 3 risk,[2] persecution risk,[3] torture risk,[4] and BOR 2 risk.[5]

5.  The applicant appealed to the Board against the Director’s decision.  An oral hearing was held on 26 February 2019, during which he gave evidence and answered questions from the Board.  In the end, as stated in the Board’s decision dated 15 March 2019, the Board seems to have accepted that the applicant was a member of the BNP and an officer of Jubo Dal, but the Board found that he had exaggerated the importance and level of that position.  The Board noted that the applicant was evasive when asked how he had been harassed by members of the Awami League, and rejected his claim that he was asked to pay money.  The Board noted that on the applicant’s own case, nothing happened to him from mid 2010 to February 2016 when he left Bangladesh.  The Board found that the fact that the applicant stayed in Mainland China for almost one year was inconsistent with a real desire to seek non-refoulement protection.

6.  The Board concluded that there was no real risk of harm in the event of refoulement.  The Board also found that internal relocation was viable.  Therefore, the Board dismissed the applicant’s appeal in relation to all applicable grounds.

The Judge’s decisions in the court below

7.  On 26 March 2019, the applicant sought leave from the Court of First Instance to apply for judicial review against the Board’s decision.  The applicant’s complaints were stated in his supporting affirmation, which the Judge described as follows:

“ The thrust of his complaint is procedural unfairness. His arguments revolve around:

(1) lack of legal and language assistance in prosecuting his appeal before the Board;

(2) the weight given to conflicting information in the Country of Origin Information (“COI”) by the Director; and

(3) the Director did not properly address the issues and just made an assessment on [template] basis.”

8.  Following a hearing attended by the applicant, on 29 June 2021 the Judge issued his decision refusing to grant leave to apply for judicial review.  The reasons were set out at [14] – [24] of the Form CALL-1 as follows (footnotes omitted):

“ Legal and language assistance

14. In Re Zafar Muazam, Re Zunariyah, Re Zahid Abbas, Re Tariq Farhan, and Re Lopchan Subash, the Court of Appeal held that neither the high standard of fairness laid down in Sakthevel Prabakar v. Secretary for Security nor the judgment of FB v. Director of Immigration prescribes that 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. The real question is whether the claimant is prejudiced for want of legal and language assistance.

15. The Applicant had the benefit of legal representation in preparing his NCF, in attending the screening interview and presenting his case to the Director. He had no complaint about lack of legal assistance up to that stage. His complaint is that he had no legal assistance thereafter to assist him in understanding the reason in the Notice for refusing his application and preparing his notice of appeal to the Board. However, all the benefits that legal representation could have afforded him are contained in his written submissions, his NCF and his answers in the screening interview given under legal advice. All these had been presented to the Director, which were then presented to the Board. He also had the services of a qualified interpreter at the oral hearing before the Board to assist him in presenting his appeal. Despite he was not legally represented at the oral hearing before the Board, all the benefits which legal representation could have afforded him were before the Board. Taking a global view of the circumstances, nothing amiss arose from the non-availability of legal representation in the process before the Board. He suffered no prejudice due to lack of legal representation before the Board.

16. In Re Karamjit Singh, the Court of Appeal agreed with the Court of First Instance that it could not have been the intention of any authority laying down the principle of a high standard of fairness that the principle would include provision of interpretation service at any time a claimant desired or required. It must be borne in mind that it was the Applicant’s choice to come to Hong Kong where the official languages are Chinese and English. In the circumstances, he has to live with or cope with his language disability. He cannot expect to have the luxury of any documents to be fully translated into his first language for his benefit. He has to find assistance himself from among his friends and his ethnic community. Indeed, the Applicant was able to file an adequately well written notice of application for leave to apply for judicial review in English himself. As for his complaint about the interpreter not being helpful and scolding him, it is all speculation on his part. He gave no particulars.

17. The Applicant argued that it was procedurally unfair because the appeal bundle is written in the English language which he is not familiar with. Be that as it may, the appeal bundle is basically made up of his NCF, the record of his screening interview, the Notice of Decision of the Director and the COI. He knew what was contained in his NCF which was filled in by him with the assistance of an interpreter and the Duty Lawyer Service. He knew what was contained in the Record of Screening Interview which he attended with the assistance of interpreter and legal representation. The record had been read back to him and he signed to acknowledge that he understood and agreed with the contents and that no amendment was necessary. Recognizing the limitation in his foreign language ability and the importance of his claim, he ought to have taken notes, at least very brief ones, to remind him of what he had said or written rather than relying on the host country to provide him the convenience of interpretation at his fingertips. The Notice including the COI were issued by the Director on 27 June 2018. The hearing of the Board was held on 26 February 2019. In between, he had eight months to seek assistance from within his circle and means. He has the burden of proving his non-refoulement claim. He cannot do nothing but to leave it to the host country to prove his case for him simply because the documents were not written in his first language. It lies ill in his mouth to say that for all these months he did not have sufficient time to prepare for his appeal.

18. When the above were put to the Applicant at the hearing, he agreed there was no unfairness.

Weighting given to conflicting information in the COI

19. The COI relied on by the Director and the Board are all from credible and official sources, including Country Report on Human Rights Practices for 2017 published by the United States Department of State; Country Policy and Information Note Bangladesh: Background information, including actors of protection, and internal relocation (January 2018) and Country of Origin Information Report of Bangladesh (31 August 2013) published by the Home Office of the United Kingdom Government; The World Factbook: Bangladesh published by the Central Intelligence Agency of the United States and other news reports and articles. There can be no valid complaint for the Board’s reliance on the COI.

20. The Applicant complained about the weighting put on conflicting information in the COI as if the Board was cherry-picking. This is basically a finding of fact which is solely within the province of the Board as the tribunal of fact (see below). There is no substance in this ground.

Improper assessment

21. The Applicant complained that the Director did not properly address the issues in his case but just made a standardized assessment as if using a template. The decision of the Director was superseded by the Decision of Board. The Court assumed that the complaint was also directed at the Board’s Decision. The Applicant gave no particulars and evidence to support his assertion. The Notice may have a similar format as notices issued in respect of other claimants. The decisions of different adjudicators vary as a matter of personal style. There may be some standardization in decisions by the same adjudicator. Such standardization may be useful to ensure consistency in treatment and that nothing which ought to have been considered has been left out. No serious complaint could be made of such standardization.

22. Insofar as the complaint is directed at the conclusion of the Board is concerned, it is a challenge of the Board’s finding of fact. The function 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. In an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration. Thus, the Court focussed its attention on possible criticism of the Decision on the basis of error of law, unreasonableness and irrationality.

23. An applicant has to prove not only that his fears and risks are genuine, but also they fall within the criteria set out under the four applicable grounds. On the basis of his evidence, the Board was not satisfied that the Applicant has proved his fears and risks are genuine and that those fears and risks fall within the criteria. It found that the Applicant had failed to discharge the burden of proving his fears and risks and his entitlement to non-refoulement protection on all applicable grounds. The Board gave reasons for its Decision. These are findings 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.

24. 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 burden of proof and standard of proof, the law and key legal principles relating to the four applicable grounds under the USM; and observed a very high standard of fairness.  The Board’s Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable or irrational.  It was on that basis that the Board found there was no factual basis to support the Applicant’s claims for non-refoulement protection under any of the four applicable grounds.  The Decision was utterly without fault.  The Applicant’s claims are not reasonably arguable.  There is no realistic prospect of success.”

9.  The applicant failed to appeal within the 14-day period prescribed by Order 53 rule 3(4) of the Rules of the High Court (Cap 4A) (“RHC”).  On 6 August 2021, he took out a summons to seek an extension of time to appeal against the decision of the Judge, stating that he did not receive the decision on time and had no idea how to advance his application.

10.  Upon consideration of the documents only and without a hearing, on 28 October 2021,[6] Deputy High Court Judge Suffiad refused to grant an extension of time to appeal, as he did not see any prospect of success in the intended appeal, and consequently dismissed the summons.

The renewed application before this Court

11.  On 24 December 2021, the applicant filed a summons in this Court to seek an extension of time to appeal against the Judge’s refusal to grant leave out of time for judicial review.  In the summons, the applicant stated that he did not receive the Judge’s decision given on 29 June 2021 in time, and that as he hardly knew English it took him some time to understand the decision and to take steps to appeal.  In his affirmation filed with the summons, the applicant reiterated these matters.

12.  The applicant lodged written submissions on 10 May 2022.  Pursuant to RHC Order 59 rule 14A, we consider it appropriate to deal with the present application on the papers without an oral hearing.

13.  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.

14.  Discounting the period in August 2021 which lay within the court’s summer vacation, the applicant was 18 days late in taking steps to appeal.  In his written submissions, he stated that he had heard that claimants for non-refoulement protection were being captured and forcefully sent back to their countries without an opportunity to prove their claims.  He was very afraid and started changing his place of residence.  He was also afraid to go back to his previous residence to check on letters and parcels, as he did not want to be captured and sent back to his country.

15.  We do not accept this explanation for the delay as there is no such practice by the authorities.  However, as the delay was not very long we go on to examine the merits of the proposed appeal.

16.  In assessing the merits we apply the well-established legal principles.  The function of 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 for interfering with the judge’s decision, the appeal should be dismissed.  It is not the role of the Court of Appeal to examine the decision of the Board afresh as if the appeal were a fresh application for judicial review.

17.  In his written submissions, the applicant recounted the history of his non-refoulement claim and the judicial review proceedings.  He referred to Deputy High Court Judge Suffiad’s decision as the “impugned decision” and said – as far as we can understand – that it was erroneous in failing to consider the substantive merits of his judicial review application and of his appeal.  We take him to be referring to the Judge’s decision refusing leave for judicial review as well.  The applicant said that the Board’s approach to evaluating key evidence was unfair, that the evidence was mischaracterised, and that the Board’s decision failed to consider country of origin information.  In particular, the applicant said that the Board failed to consider country of origin information past July 2016 and the current political climate.  He said that the Judge and Deputy High Court Judge Suffiad failed to carry out sufficient research and inquiry into country of origin information.

18.  There are no merits in these submissions.  The allegation that the Board mischaracterised his evidence or took an unfair approach to evaluating the evidence, is wholly unparticularised and unsubstantiated. Contrary to the applicant’s allegation, as stated by the Judge in [19] of the CALL-1 form, the country of origin information referred to by the Director and the Board included country reports in 2017 and 2018.

19.  Further, whilst the applicant said in his written submissions that the situation in Bangladesh was not good and was getting worse day by day in terms of the corona virus pandemic and other aspects, he stated that he would return to his country when the pandemic situation came to an end and simply asked to be able to stay in Hong Kong until the situation was resolved.  This is wholly contrary to his claim that he feared severe harm from his political enemies in Bangladesh.

20.  The applicant also attached copies of two documents which were apparently issued by the BNP and certified that he was an office-holder and had been threatened by members of the ruling party.  There is no reason why these “certificates” could not have been obtained earlier by the applicant for use in the proceedings before the Director and the Board. Accordingly we decline to permit them to be used for the purposes of this application.  In any event, they do not undermine the Board’s findings which implicitly accepted the applicant’s claim that he was a BNP member but which found that he was not subject to any risk of harm of the requisite severity.

21.  For these reasons, we do not consider that there is any realistic prospect of success in the intended judicial review.  Nor is there any realistic prospect of success for the applicant to show that the Judge was wrong to refuse leave for judicial review.  It follows that time should not be extended for the appeal to be brought.  The applicant’s summons is accordingly dismissed.

[1]  [2021] HKCFI 1882.

[2]  This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).

[3]  This refers to the risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.

[4]  This refers to the risk of torture under Part VIIC of the Immigration Ordinance (Cap 115).

[5]  This refers to the risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).

[6]  [2021] HKCFI 3148.