RE HUSSAIN IMRAN

CAMP 241/2021

[2021] HKCA 1587

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 241 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 2300 OF 2018)

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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 leave to appeal out of time against the decision of Deputy High Court Judge To (“Judge”) on 21 April 2021[1] refusing to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non‑refoulement Claims Petition Office (“Board”) dated 19 October 2018.  In that decision, the Board upheld the decision of the Director of Immigration (“Director”) dated 12 January 2018 rejecting the applicant’s non‑refoulement claim.

2.  On 23 June 2021, the Judge refused to grant an extension of time for the applicant to appeal against his decision of 21 April 2021.

Background

3.  The applicant is a Pakistani national.  He entered Hong Kong illegally in March 2015 and was arrested by the police in Hong Kong on 26 April 2015 and referred to the Immigration Department the next day.  He lodged his non‑refoulement claim on 28 April 2015.  Whilst released on recognizance he took up employment illegally for which he was convicted on 2 September 2017 and sentenced to 15 months’ imprisonment. The applicant completed a non‑refoulement claim form (“NCF”) on 8 December 2017 with assistance from the Duty Lawyer Service.

4.  The applicant’s non‑refoulement claim was based on the fear that, if he returned to Pakistan, he would be harmed or even killed by supporters of the Pakistan Muslim League-Nawaz due to his support and work on behalf of the Pakistan People’s Party.  The factual background was summarized at [7] to [15] of the Board’s decision.

5.  By notice of decision dated 12 January 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]

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 answered questions from the Board with the assistance of an Urdu language interpreter.  The Board found that the applicant’s evidence at the hearing was vague, internally inconsistent, and contradicted the evidence in his NCF.  When asked about the discrepancies, he did not clarify his evidence or provide a reason for the inconsistency.   In the end the Board was unwilling to attach credence to the crucial parts of the applicant’s evidence.

7.  As a result, the Board found that the centrepiece of the applicant’s story had not been established and that there was no real risk of harm for him in the event of refoulement.  The Board dismissed the applicant’s appeal on 19 October 2018 in relation to all applicable grounds.

The Judge’s decisions in the court below

8.  On 22 October 2018, the applicant sought leave from the Court of First Instance to apply for judicial review against the Board’s decision.  He raised a number grounds for judicial review, summarized by the Judge at [26] of the Form CALL‑1. 

9.  Following a hearing on 8 April 2021 at which the applicant appeared before the Judge, on 21 April 2021 the Judge refused to grant leave to apply for judicial review.  The reasons for the refusal were set out in [26]‑[33] of the Form CALL‑1 as follows:

“ 26. The Applicant advanced four grounds of appeal:

(1) the Board erred in its finding of facts; its Decision is unfair and unreasonable; he was not given sufficient time and chance to arrange relevant evidence to his non‑refoulement claim as well as his appeal;

(2) the Director or the Board has failed to appreciate or give proper weight to the presence of state acquiescence;

(3) the Director or the Board has failed to take his argument into account or failed to give enough weight to his argument and to the Country of Origin Information which supports his case of police corruption before reaching the Decision; and

(4) the Decision was unfair and failed to attain the high standard of fairness required by the Wednesbury test.

Disposition

27. 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. 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 [2018] HKCA 524 at [14(1)].

28. The Court had rigorously scrutinized the Board’s Decision, the papers, grounds of application and the Applicant’s submissions. The Board did not find the Applicant credible and accepted very little of his evidence. It found that the Applicant has failed to discharge the burden of proving his fears and risks and failed to establish his entitlement to non‑refoulement protection on all applicable grounds. The Board gave reasons for its Decision. These are finding of facts and credibility of witnesses which are exclusively matters for the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality.

29. The Court is of the opinion that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM. An applicant has to prove not only that his fears and risks are genuine, but also they fall within certain criteria set out under the four applicable grounds. On the fact, the Board was not satisfied that the Applicant has proved his fears and risks are genuine.

30. Under Ground (1), the Applicant complained that he was not given sufficient time to prepare his evidence. He gave no particulars. He lodged his non‑refoulement claim in April 2015. He had the benefit of legal assistance in preparing his non‑refoulement claim form on 8 December 2017 and at the screening interview when presenting his case to the Director. The hearing of the Board was held on 12 September 2018. In between, he had nine months to prepare his case and collate his evidence. He did not complain before the Board that he needed time to prepare his case. This ground is just a bald and convenient assertion.

31. Under Ground (2), he complained that the Board had not considered state acquiescence. In fact, the Board had considered that issue in paragraphs 77 and 78 of its Decision. Acts of members of PML(N) is not to be equated as acts of the government and the state. The Board found there was no evidence in support of state acquiescence in respect of the alleged torture, persecution and injury suffered by the Applicant.

32. Under Ground (3), the Applicant complained that the Board did not give enough weight to his argument about police corruption and Country of Origin Information. The Board did not actually consider state protection and internal relocation. In view of its finding of fact, the Board found it not necessary to consider these matters. Hence, there is no substance in this complaint.

33. In Grounds (1) and (4), he complained about unreasonableness and unfairness in the Board’s Decision.  In the opinion of the Court, the Decision is well justified by the Board’s finding of facts.  All in all, the Court found the Board was utterly without fault on its finding of facts.  There were no errors of law or procedural unfairness or irrationality in its Decision.  The Court therefore found no substance in the grounds of this application.  Accordingly, the application for leave to apply for judicial review is refused.”

10.  On 25 May 2021, the applicant applied by summons for an extension of time to appeal against the decision of the Judge.  In his supporting affirmation, he deposed that he did not receive the Judge’s decision.  However, he did not specify any grounds of appeal in his application.  In a subsequent letter received by the court on 7 June 2021, the applicant stated, inter alia, that he did not receive any help from a lawyer before the Board, and that the interpreter did not help him.

11.  The Judge determined the application for extension of time without an oral hearing.  In his decision dated 23 June 2021,[6] the Judge noted that while the court’s order was returned undelivered, the non‑delivery and resultant delay was of the applicant’s own making, because he allegedly changed his address twice without notifying the court the second time.  In any event, the Judge did not see any prospect of success in the intended appeal based on the grounds of lack of legal representation and language assistance, and dismissed the summons accordingly.

The renewed application before this Court

12.  On 5 July 2021, the applicant took out a summons seeking leave from this Court to appeal out of time. Although the summons refers to an appeal against the Judge’s decision of 23 June 2021, it is in substance a renewed application for an extension of time to appeal against the Judge’s decision dated 21 April 2021 refusing leave for judicial review.  In his supporting affirmation, the applicant simply deposed that he did not know court procedures, did not know English, and disagreed with the decision of the authorities, without specifying any intended grounds of appeal.

13.  The applicant lodged his written submissions on 14 July 2021.  In those submissions, he argued that the lack of legal representation and language assistance caused prejudice to him and was detrimental to his claim, as it meant that he had no understanding of the process or the reasons for rejecting his claim.  He submitted that he could not advance proper written submissions due to a language problem, and that it was unfair that the Judge never heard him in person.  He also submitted that the Board’s decision was not translated to him by an interpreter and that legal representation was not provided for the determination of BOR 2 risk in his claim, unlike the determination of other applicable grounds.

Legal principles

14.  Having considered the materials available, we consider it appropriate pursuant to Order 59 rule 2A(5) of the Rules of the High Court (Cap 4A) to determine the application on the papers.

15.  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.  An applicant who fails to do so cannot appeal unless an extension of time is granted.  In considering whether to extend time, 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.  Even if the court does not accept that the applicant’s explanation for delay is reasonable, the court will still examine if the intended appeal has merits, in terms of whether there is a reasonable prospect of success in persuading this Court to reverse the decision of the judge: Re Saqlain Muhammad [2018] HKCA 346.

17.  In assessing the merit of the intended appeal, we shall 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 primary decision‑makers are the Director and the Board.  Although in non‑refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board.  Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director).  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. 

18.  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 judge, 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. 

Discussion

19.  In the present case, the applicant’s intended appeal was late by 20 days.  Although, as the Judge noted, there was no valid excuse for the delay, we shall focus on the merits of the intended appeal to see whether it has any reasonable prospect of success.

20.  The Board rejected the applicant’s claim for non‑refoulement protection due to its adverse finding on his credibility based on the problems inherent in his evidence and its finding that there was no real risk of harm in the event of refoulement.  These findings are within the province of the Board and open to the Board on the materials available.  The court will not interfere with such assessments by way of judicial review unless they are vitiated on public law grounds.  The Judge had comprehensively dealt with the grounds advanced by the applicant for the intended judicial review and rejected them with reasons.

21.  As this Court will only examine the Judge’s decision in light of the grounds proposed by the applicant for appealing against the decision of the Judge, and as there are no grounds advanced that point to any error in the Judge’s decision, the appeal should be dismissed.

22.  As for the applicant’s arguments regarding lack of legal or language assistance, the Judge had again considered and rejected them with detailed reasons.  In his decision dated 23 June 2021, the Judge stated as follows (footnotes omitted):

“ 10. He relies on two grounds of appeal, lack of legal representation and language assistance. These grounds are probably raised in the context of his claim of procedural unfairness. These grounds were never raised in the application for leave to apply for judicial review. It casts serious doubts on their genuineness. In any event, these are not valid grounds.

11. 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.

12. The Applicant had the benefit of legal representation in preparing his non‑refoulement claim form, in attending the screening interview and presenting his case to the Director of Immigration (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. However, all the benefits that legal representation could have afforded him are contained in his written submissions, his non‑refoulement claim form 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. This ground has no prospect of success.

13. In Re Karamjit Singh, the Court of Appeal adopted the rationale of 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 Form 86 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.

14. The Applicant may probably argue 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 non‑refoulement claim form, the record of his screening interview, the Notice of Decision of the Director dated 12 January 2018 (the ‘Notice’) and the Country of Origin Information (‘COI’). He knew what was contained in his non‑refoulement claim form 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 12 January 2018. The hearing of the Board was held on 12 September 2018. In between, he had eight months to seek assistance from within his circle and means. It lies ill in his mouth to say that for all these months he did not have sufficient time to prepare for his appeal.

15. The Applicant had the services of a qualified interpreter at the oral hearing before the Board to assist him in presenting his appeal. His complaint about lack of legal and language assistance is more apparent than real.

16. The COI relied on by the Director and the Board are all from credible and official sources.  However, as the Applicant failed to prove his factual case of fear and risk, the Board did not find it necessary to consider the COI.  Any complaint about the COI not having been translated to him is irrelevant.”

23.  The applicant has not been able to point to any error in the Judge’s above reasoning.

24.  The applicant’s arguments that the Judge never heard him in person or that legal representation was not provided for the determination of BOR 2 risk in his claim unlike the determination of all other applicable grounds, appear to have been copied from other cases, as they are clearly not applicable here.  As mentioned above, the applicant appeared before the Judge at the hearing of his application for leave for judicial review.  BOR 2 risk was assessed by the Director and the Board together with all the other applicable grounds at the same time respectively.

25.  Having considered the materials before us, we are of the view that the Judge’s observations are fully justified and that there is no reasonably arguable ground for judicial review.  The Judge was right to refuse leave.

26.  For these reasons, we do not see any reasonable prospect of success in the intended appeal against the refusal of leave for judicial review.  It would be futile to extend time only for a hopeless appeal to be lodged.  The summons dated 5 July 2021 is dismissed accordingly.

[1] [2021] HKCFI 1080, HCAL 2300/2018.

[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 1683, HCAL 2300/2018.