Re Subramanian Sudhagar

CACV 41/2022

[2022] HKCA 676

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 41 OF 2022

(ON APPEAL FROM HCAL 1854 OF 2018)

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Before:  Hon Au JA and Lisa Wong J in Court

Date of Hearing:  26 April 2022

Date of Judgment:  13 May 2022

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J U D G M E N T

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Hon Au JA (giving judgment of the court):

1.This is an appeal by the applicant against the decision of Yau J (“the Judge”)  set out in the Form CALL-1 dated 13 March 2019, by which the Judge refused his application for leave to apply for judicial review ([2019] HKCFI 648)  (“the Leave Decision”). By a subsequent decision on 23 February 2021, the Judge refused to grant extension of time to the applicant to appeal against the Leave Decision ([2021] HKCFI 395).

2.The intended judicial review is to challenge the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”)  dated 2 August 2018 (“the Board’s 2^nd Decision”), dismissing the applicant’s appeal against the further decision of the Director of Immigration (“the Director”)  dated 25 January 2017 (“the Director’s 2^nd Decision”)  rejecting the applicant’s non-refoulement claim on the basis of BOR2 risk[1].

3.On 29 October 2021, this Court (Kwan VP and Barma JA)  granted leave to the applicant to appeal against the Leave Decision out of time ([2021] HKCA 1560).

4.We heard the appeal on 26 April 2022.  After the hearing, we reserved our judgment to be handed down in writing.  This is what we do now.

Background

5.The applicant is a national of India.  He last entered Hong Kong as a visitor on 31 January 2007 and overstayed.  On 3 December 2007, he was arrested by the police for overstaying in Hong Kong.  On 16 December 2007, he raised a torture claim on the basis that he would be harmed or killed by his creditor if he returned to India.  His torture claim was later treated as a non-refoulement claim under the Unified Screening Mechanism.

6.By a Notice of Decision dated 24 November 2014 (“the Director’s 1^st Decision”), the Director rejected the applicant’s non-refoulement claim.  His decision covered torture risk[2], BOR3 risk[3] and persecution risk[4].  Taking into account all relevant circumstances, the Director considered that his non-refoulement claim was unsubstantiated.  The applicant subsequently applied to the Board to appeal against the Director’s 1^st Decision and his appeal was dismissed by the Board on 10 May 2016 (“the Board’s 1^st Decision”).

7.By a Notice of Further Decision dated 25 January 2017, the Director further refused his non-refoulement claim on the basis of BOR2 risk.

8.The applicant then appealed against the Director’s 2^nd Decision to the Board.  The Board considered his appeal on paper and considered that there was no evidence to show that he would be at risk of harm from capital punishment inflicted by the government of India; or face harm from the Indian government that would place his life at risk.  The Board also held that the applicant failed to show there was a real risk that the ill-treatment he claimed he would face if refouled would attain the requisite minimum level of severity.  Thus, his appeal was dismissed by the Board on 2 August 2018.

The Judge’s Decisions

9.On 7 June 2016, the applicant applied for leave to apply for judicial review against the Director’s 1^st Decision and the Board’s 1^st Decision under HCAL 107/2016.  His application was refused by the Judge on 26 May 2017.

10.On 6 September 2018, the applicant filed a Form 86 and a supporting affirmation applying for leave to apply for judicial review against the Board’s 2^nd Decision under HCAL 1854/2018.  In support of his application, he raised the following grounds of review:

(1)  Procedural impropriety for failure to conduct sufficient inquiry into the relevant country of origin conditions;

(2)  Procedural impropriety or irrationality for failure to conduct oral hearing for his BOR2 claim and failure to provide him with sufficient opportunities to present his claim;

(3)  Error or misdirection in law for failing to take into account the considerations of psychological strain and threats to him personally or threats to him directly to kill him; and

(4)  No sufficient basis to conclude that the applicant would not be at risk of being subjected to any kind of risk to life upon refoulement.

11.The applicant attended a hearing before the Judge on 29 November 2018.  The Judge considered that it was not open to the applicant to apply for leave to seek judicial review for the second time on the same subject matter and dismissed his application for leave to apply for judicial review on 13 March 2019.

12.By a summons and a supporting affirmation dated 28 August 2020, the applicant applied for extension of time to appeal against the Leave Decision.  After hearing the applicant on 7 October 2020, the Judge refused his application on 23 February 2021 on the basis that his intended appeal had no prospect of success and it served no meaningful purpose to extend time to appeal against the Leave Decision.

CAMP 70/2021

13.On 8 March 2021, the applicant filed a summons to the Court of Appeal seeking to set aside the order dated 23 February 2021. Treating his application as a renewed application for leave to appeal out of time against the Leave Decision,[5] the Court of Appeal granted leave to the applicant to appeal against the Leave Decision out of time, on the basis that there was real prospect of success in his intended appeal against the Leave Decision.

14.In particular, the Court noted that the Judge was wrong in determining that it was not open for the applicant to take out the leave application under HCAL 1854/2018.  The Judge had mistakenly treated the leave application under HCAL 1854/2018 as against the Director’s 1^st Decision and the Board’s 1^st Decision whereas the applicant was actually applying for leave to seek judicial review against the Board’s 2^nd Decision.  The Court also noted that there was some basis for arguing that the Judge had not properly considered the applicant’s application for leave to apply for judicial review under HCAL 1854/2018 and his grounds pertaining to his claim under BOR2.

15.Accordingly, the Court granted the applicant leave to appeal against the Leave Decision out of time and directed him to file a Notice of Appeal within 28 days of the judgment.

16.By an unless order dated 10 January 2022, the Court further ordered that unless the applicant filed and served a Notice of Appeal on or before 24 January 2022, he would be debarred from doing so.

The Appeal

17.On 20 January 2022, the applicant filed a Notice of Appeal against the Leave Decision.  In his Notice of Appeal, he stated that he disagreed with the decision made by the Director and the Board given his lack of language assistance and the authorities did not consider his BOR2 claim.  He further complained that the Director made his 2^nd Decision based on his previous facts without asking the applicant anything about his BOR2 risk.

18.Pursuant to this Court’s directions dated 4 March 2022, the applicant lodged his written submissions on 28 March 2022.  In his written submissions, he claimed that his case was not determined fairly by the Director and the Board.  He further claimed that there was a lack of legal representation and language assistance for his BOR2 assessment.

19.We heard the appeal on 26 April 2022.  A Tamil interpreter was also present during the hearing to provide language assistance.  During the hearing, the applicant confirmed that he had nothing further to add to his written materials.

Discussion

20.The relevant legal principles governing appeals in non-refoulement cases are set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

21.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.  It is not the role of the Court of Appeal to examine a decision of the Board afresh as if it is a fresh application for leave to apply for judicial review.  Otherwise, an applicant could flagrantly disregard the time limit in Order 53, rule 4(1)  of the Rules of the High Court, Cap 4A.

22.In our view, whilst we agree that the Judge had erred in determining that it was not open for the applicant to take out the leave application under HCAL 1854/2018 and did not appear to have properly considered the Board’s 2^nd Decision based on the applicant’s arguments as to his BOR2 assessment, in the interest of justice and for the purpose of the present appeal, we will focus on the merits of the applicant’s arguments and the merits of his intended judicial review.

23.As a start, his complaint regarding the lack of language assistance and legal representation for his BOR2 assessment is wholly without substance.  It has been repeatedly emphasised by the Court of Appeal that as a matter of law, a non-refoulement claimant is not entitled to free legal representation at all stages of the process and that the high standard of fairness required by law does not entail interpretation service being made available to an applicant all the time as he desires: Re Zunariyah [2018] HKCA 14 at [18]; Re Zahid Abbas [2018] HKCA 15 at [11] and Re Tariq Farhan [2018] HKCA 17 at [11].  We also note that all the Court documents filed in this appeal and in the Court below were in English.  It is thus clear that either the applicant was himself conversant with the English language or he had access to language assistance of his own if he found it necessary.  It is therefore clear that the applicant was not in any way prejudiced.  We consider that a high standard of fairness had been achieved in the overall process of the determination of his non-refoulement claim.

24.Further, the applicant’s complaint that the Director did not ask him for information concerning his BOR2 assessment was factually wrong.  As stated at [1] of the Director’s 2^nd Decision, by way of a letter dated 5 January 2017, the Director had invited the applicant to submit additional facts in relation to his BOR2 claim on or before 19 January 2017.[6] In the same letter, the Director had also notified the applicant that should he fail to provide the additional facts to the Director on or before 19 January 2017, the Director would proceed to make a further written decision taking into account any new facts submitted and all the facts previously submitted under the unified screening mechanism.  However, the applicant did not give any reply to the Director on or before 19 January 2017.[7]  It was on this basis that the Director proceeded to assess his BOR2 claim on the facts and materials previously submitted to the Director.  In the absence of any additional facts or materials, the Director was entitled to proceed on the basis that the applicant’s claim under BOR2 risk was actually founded on the same primary materials relating to his other claims, at which time the applicant had the benefit of legal representation: Re Lakhwinder Singh [2018] HKCA 246 at [10].  The applicant had already been given sufficient opportunities to present his case before the Director and the Board on the basis of BOR2 risk.  Accordingly, his complaints are entirely misplaced and must fail.

25.Insofar as the Board’s 2^nd Decision is concerned, on the facts of the present case, we also cannot see any additional basis for the applicant to advance a claim regarding BOR2 risk other than the matters relied upon in respect of BOR3 risk, torture risk and persecution risk.  Noting that the applicant did not provide any additional facts to the Board when he filed his Notice of Appeal on 12 April 2017, the Board was equally entitled to consider his claim on the basis of BOR2 risk based on the materials previously submitted before it.  It was also open for the Board to come to the view that as there was no further information provided by the applicant, on the facts of the present case, it was not necessary to hold a hearing in relation to his BOR2 assessment.  Further, the applicant had not indicated in his affirmation in supporting the judicial review leave application or orally in this appeal what prejudice he had suffered because of a lack of an oral hearing in relation to his BOR2 assessment before the Board.  Having read the Board’s 2^nd Decision, we do not see any error of law or procedure in it.

26.In any event, general and vague assertions of his fear if refouled do not constitute viable grounds of appeal.  As repeatedly emphasised by the Court, assessment of evidence, Country of Origin materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director)  as primary decision makers.  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: Nupur Mst v Director of Immigration, supra, [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  In the present case, we do not see any error of law or procedure in the proceedings before the Board in relation to the applicant’s non-refoulement claim on the basis of BOR2 risk.

27.In the premises, the applicant’s appeal is wholly without prospect of success and his intended judicial review is clearly not reasonably arguable.  In the interest of justice, we do not consider it appropriate or useful for leave to apply for judicial review to be granted for a wholly unmeritorious application to be considered by the Judge again on substantive merits.

28.For the above reasons, given that the applicant’s appeal is without merits and his intended judicial review is not reasonably arguable, we consider it appropriate that leave to apply for judicial review be refused.  Accordingly, we dismiss the appeal.

The applicant acting in person