Khadka Menuka v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

CAMP 84/2023, [2023] HKCA 718

On An Intended Appeal From [2022] HKCFI 1740 &

[2023] HKCFI 145

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 84 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO 530 OF 2019)

________________________

________________________

______________

J U D G M E N T

______________

Hon Chow JA (giving the Judgment of the Court):

1.On 24 February 2023, the Applicant took out a summons to apply for an extension of time to appeal against the order of Deputy High Court Judge To (“the Judge”) dated 18 January 2023 refusing to grant her an extension of time to appeal against the Judge’s earlier order dated 15 June 2022 (“the Order”) refusing to grant her leave apply for judicial review.

2.The intended judicial review was against the decision of the Director of Immigration (“the Director”) dated 26 March 2018 and the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 31 January 2019 rejecting the Applicant’s non-refoulement claim.

3.Having considered the documents, we are of the view that it is appropriate to determine this application on paper without a hearing under Order 59, Rule 14A of the Rules of the High Court, Cap 4A.

BACKGROUND

4.The Applicant is a national of Nepal. She entered Hong Kong on 22 March 2014 and was permitted to remain as a visitor until 29 March 2014. She overstayed, and surrendered herself to the Immigration Department on 19 May 2015. She lodged her claim for non-refoulement protection by written representations dated 2 and 16 October 2015, claiming that if she was refouled, she would be harmed by her creditors. Details of the Applicant’s claim have been summarised by the Judge at §§1-9 of the CALL-1 Form.

5.By a Notice of Decision dated 26 March 2018, the Director rejected the Applicant’s non-refoulement claim on all applicable grounds: risk of torture[1], BOR 3 risk[2], persecution risk[3] and BOR 2 risk[4] (“the Director’s Decision”).

6.The Applicant appealed the Director’s Decision to the Board. On 31 January 2019, the Board dismissed the Applicant’s appeal, and confirmed the Director’s Decision (“the Board’s Decision”). The Board’s reasons for its decision were summarised by the Judge at §§10-11 of the CALL-1 Form, as follows:

“[10] The Applicant testified before the Board. The Board found ‘it is difficult to imagine testimony more incoherent, self-contradictory, garbled, vague and inconsistent with what the [Applicant] had previously said.’ Her testimony was so markedly different from what she had presented in her NCF and in the screening interview. She said she married without the permission of anyone in her family and she became estranged from her father and brothers instead of having undergone a family arranged marriage. Then, she changed her evidence and said she had not actually married but just lived for a short period of time with the person whom she called her husband. Then, instead of saying that she gave birth to twin boys, she said she had a son first followed by another 16 months later. When asked to describe the difficulties which caused her to flee Nepal for Hong Kong, she said she had to come to Hong Kong in order to have an operation to remove kidney stones which led to her bleeding. It was only when asked again if she had other reasons for coming to Hong Kong that she mentioned her money problem. She put the blame for the inconsistencies in her evidence to the difficulties with the initial interpreter.

[11] The Board found it impossible to give any credence to her testimony. It took the view that the Applicant’s creditors had not demonstrated any real intention to harm her and she would be unlikely to suffer from any harm in future. Based on credible Country of Origin Information (‘COI’), the Board was also satisfied that she could rely on adequate state protection if necessary or relocate both safely and reasonably to different parts of Nepal. The Board found the Applicant had failed to prove the factual basis in support of her claim for non-refoulement protection. Accordingly, the Board found the Applicant is not entitled to protection under any of the applicable grounds under the USM and dismissed her appeal.”

7.On 25 February 2019, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision, naming both the Director and the Board as proposed respondents. No ground of judicial review was given in the Form 86. In her affirmation filed on the same date, the Applicant stated that she was seeking leave to apply for judicial review of both the Director’s Decision and the Board’s Decision.

THE JUDGE’S DECISION

8.On 15 June 2022, the Judge refused to grant the Applicant leave to apply for judicial review for the following reasons:

“[5] The Decision of the Board is reviewable by judicial process but not the decision of the Director in the Notice because there are established statutory procedures of appeal to the Board and the Applicant has invoked those procedures. The Director’s decisions in the Notice were superseded by the Board’s Decision and are no longer susceptible to judicial review: Re Moshsin Ali. In any event, no relief is sought in respect of the Notice. For the benefit of the Applicant, the Court treated her complaints against the Director as if they were directed at the Board also.

…

[13] The Applicant filed an eleven-page supporting affirmation setting out some factual background and her grounds of judicial review. Her grounds mainly revolve around procedural unfairness arising from lack of legal representation and language assistance and that her life is still in danger.

[14] The Applicant was legally represented up to the conclusion of the screening interview, but not at the appeal before the Board. She was provided with legal assistance and interpretation service in the preparation of her NCF and in her attendance at the screening interview. She was also provided with an interpreter at the hearing of her appeal before the Board.

…

[16] The Applicant had the benefit of legal representation in presenting her case to the Director. All the benefits that legal representation could have afforded her were contained in her written submissions, non-refoulement claim form and answers in the screening interview given under legal advice. All these had been presented to the Director, which were then presented to the Board. Despite she was not legally represented at the hearing before the Board, all the benefits which legal representation could have afforded her 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. The Applicant suffered no prejudice due to lack of legal representation before the Board.

[17] The Applicant said that the appeal bundle is in English. She complained that the Notice of Decision was written in English and not interpreted to her. She did not understand the reason for the Director rejecting her claim and did not know how to fill in the Notice of Appeal. As a matter of law, a claimant does not have absolute right to free language assistance at all stages of the proceedings. In Karamjit Singh[5], 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 an applicant 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, she has to live with or cope with her language disability. She cannot expect to have the luxury of any documents to be fully translated into her first language for her benefit as and when she requires. She has to find assistance himself from among her friends and her ethnic community. Indeed, the Applicant was able to file an adequately well written Form 86 and supporting affirmation in English showing she has access to interpretation services.

[18] It must be noted that the appeal bundle is basically made up of her NCF, the record of her screening interview, and the Director’s Notice of Decision with the COI. She knows what is contained in her NCF which was filled in by her with the assistance of an interpreter and the Duty Lawyer Service. She knows what is contained in the record of screening interview which she attended with the assistance of interpreter and legal representation. The record had been read back to her in her own language and she signed to acknowledge that she understood and agreed with its contents and that no amendment was necessary. Recognizing the limitation in her foreign language ability and the importance of her claim, she ought to have taken notes, at least very brief ones, to remind her of what she had said or written rather than relying on the host country to provide her the convenience of interpretation at her fingertips. The Notice and COI are in English but unfortunately have not been translated. As mentioned above, she has to find assistance himself from among her friends and her ethnic community.

[19] The single most important document in the hearing bundle is the Notice of Decision which contains the reasons why the Director refused her non-refoulement claims. It was issued on 26 March 2018. The oral hearing was conducted 22 November 2018. In between, she had almost eight months to find out what the appeal bundle is about, if she was at all serious in pursuing her non-refoulement claim. Except for the COI, the information in the other documents in the bundle was provided by him, although reduced into English. She was familiar with the information. If she needed more time to prepare for the appeal, she could have raised that with the Board, but she did not.

[20] The Applicant complained about lack of legal and language assistance to enable her to understand the Decision and properly prepare her application for leave to apply for judicial review. She said even now she did not understand the content of the Decision. Her complaint is premised on her belief that as an asylum seeker she is entitled as of right to such services at any time. That is not the law. For reasons as explained above, it was her choice to come to Hong Kong where the official languages are English and Chinese. She has to live with her disability if she is not conversant in these languages and has to find ways around it. She had three months to make her application for leave and thereafter ample time to prepare her submission, if she was minded to. As reflected by her supporting affirmation, she in fact has access to language assistance.

[21] The Applicant complained that she was served by various interpreters, some of them were not qualified. She complained about the quality of their interpretation. All interpreters provided by the scheme are properly qualified and had been assessed by the government. Before providing their services, they were required to swear or affirm that they will provide their services with his best skill and ability. If she could not understand English, how could she be in the position to challenge the quality of the interpreters’ services? Absent solid convincing evidence, her complaint is just a bare assertion. The extent of the inconsistencies between her evidence in the NCF and her testimony and specifics given in her three different accounts suggest that the problem is not one of quality of interpretation but a change of her evidence.

[22] In effect, this ground amounts to an appeal against the finding of fact by the Board dressed up as an application for judicial review. It is not a proper ground for application for leave to apply for judicial review. This complaint is considered below in the Court’s overall assessment of the merits of the application.

…

[24]  The Board’s Decision is a finding of fact which is 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 Decision was utterly without fault. There were no errors of law in its Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Board observed a very high standard of fairness. Its Decision did satisfy the enhanced Wednesbury test. Having considered her grounds for application, the Court was satisfied that the Applicant’s claims are not reasonably arguable. There is no realistic prospect of success in the proposed judicial review.”

9.On 5 December 2022, the Applicant applied by summons for an extension of time to appeal against the Order. On 18 January 2023, the Judge refused the application, holding that there was no prospect of success in her intended appeal.

THIS APPLICATION

10.By a summons taken out on 24 February 2023, the Applicant applied for an extension of time to appeal against the Judge’s order of 18 January 2023. In the summons, the Applicant said that she did not agree with the court’s decisions, and the court did not consider her applications properly. She also repeated that she would be killed by her enemy if she returned to her home country.

11.The Applicant has failed to lodge written submissions in support of the application, contrary to the directions given by the Registrar of Civil Appeals on 24 February 2023.

DISCUSSION

12.Following the approach in Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at §§3-8, we would treat the present application as a renewed application for extension of time to appeal against the Order.

13.In deciding whether to extend time to appeal, the court will take into account the length of the delay, the reasons for the delay, the chances of the appeal succeeding, and the degree of prejudice to the other party if an extension of time is granted.

14.The prospect of success of an intended appeal is important. The court will not grant an extension of time to appeal for a hopeless appeal to be pursued: Re Adumekwe Rowland Ejike [2019] HKCA 702, at §19.

15.The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524, at §14. In particular, in an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would 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’s decision, the appeal should be dismissed. The Court of Appeal’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst, at §14(6)).

16.Further, the assessment of evidence, country of origin information, 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 is an error of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022. No such error of law or procedural unfairness or irrationality in the decision of the Board is shown in the present case.

17.The Applicant has failed to identify or show any error in the Judge’s decision of 15 June 2022, and has failed to raise any viable ground of appeal against the Order.

18.There is no prospect of success in the Applicant’s intended appeal. It is thus futile to grant the Applicant any extension of time to appeal against the Order.

DISPOSITION

19.The application for extension of time to appeal is refused, and the Applicant’s summons taken out on 24 February 2023 is dismissed.

The Applicant, acting in person