Muruganantham Rathna Kumar v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

CAMP 113/2022

[2022] HKCA 1145

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 113 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 1938 OF 2018)

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BETWEEN

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Before:  Hon Kwan VP and Chu JA in Court

Date of Written Submissions:  29 April 2022

Date of Judgment:  5 August 2022

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J U D G M E N T

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Hon Kwan VP (giving the Judgment of the Court):

1.On 7 January 2022, Deputy High Court Judge KW Lung refused the applicant’s application for leave to seek judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning his non‑refoulement protection claim[1].

2.On 10 March 2022, the judge dismissed the applicant’s application for extension of time to appeal against the said decision as the judge was of the view there is no merit in the intended appeal[2].

3.On 19 April 2022, the applicant filed the present summons with the Court of Appeal challenging the decisions made by the authorities and the judge’s decision on 10 March 2022. In light of the decision Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at §§3 to 8, we shall treat this as a renewed application for leave to appeal out of time against the decision of the judge dated 7 January 2022.

4.The applicant is a national of India and is 29 years old. He came to Hong Kong on 1 April 2016 as a visitor and was permitted to stay for 14 days. However, the applicant overstayed and he surrendered to the Immigration Department on 18 April 2016. He subsequently lodged his non-refoulement claim on 5 and 15 July 2016 on the basis that he would be harmed or killed due to a dispute and physical altercation with a man named Putturaj, who is a member of the All India Anna Dravida Munnetra Kazhagam (“AIADMK”; the ruling party of the region at the material time) and a local thug. The applicant was also in fear of creditors from whom he borrowed money in order to depart from India to find work.

5.By a Notice of Decision dated 13 December 2016, the Director rejected the applicant’s claim on torture risk[3], BOR 3 risk[4], BOR 2 risk[5] and persecution risk[6].

6.The applicant appealed against the Director’s decision to the Board and a hearing was held on 5 June 2017. The applicant gave evidence at the hearing and answered questions. The Board accepted that the applicant had a fight with Patturaj, but there was inconsistent evidence given by him on other matters, such as his evidence that Patturaj came to his home when he was there and threatened his parents, while in his written claim before the Director it was alleged that he fled the scene after overhearing the incident. In any event, the Board found there was no evidence suggesting that AIADMK was involved in the applicant’s alleged dispute. It also did not accept that there are still on-going threats from Patturaj.

7.In light of its findings, the Board held that there was no basis that the applicant would face any risk of torture or persecution in India if he is returned there. The Board therefore dismissed his claim on 3 September 2018.

The judge’s decision

8.On 14 September 2018, the applicant applied for leave to seek judicial review against the Board’s decision. He did not supply any grounds in support in his Form 86. In his supporting affirmation, he complained that there was insufficient time to submit evidence before the Board. As the applicant did not request for a hearing, the judge dealt with the matter on paper.

9.The judge found the applicant did not raise the issue of insufficient time to prepare his evidence at the Board’s hearing and therefore he is not allowed to raise this before the court. The judge also held that as the Board had rejected his evidence on the main facts, the applicant did not have factual basis in support of his claim for non-refoulement protection. The judge followed the approach in Re: Kartini [2019] HKCA 1022 at §13, namely, that the assessment of evidence and Country of Origin Information and risks of harm, state protection and viability of internal relocation is primarily within the province of the Board (and the Director), and that the court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality.  The judge did not find any error of law or procedural unfairness in the Board’s decision and the findings of the Board were not Wednesbury unreasonable or irrational.

10.Thus, the judge found that the intended judicial review has no reasonable prospect of success and dismissed the leave application on 7 January 2022.

Grounds of intended appeal

11.The applicant did not provide any substantive grounds of appeal in his affirmation for this application and simply stated he disagreed with the decisions of the Director and the Board and did not think his case has been determined fairly. As for his written submissions, the applicant’s contentions may be summarised as follows:

(1)  His case has not been determined fairly.

(2)  There should be a proper and fair mechanism that allows unrepresented litigants to understand more about their claims.

(3)  He was never provided with proper legal and language assistance. The Board’s decision has never been read to him in his own language. The failure to provide proper assistance is procedurally unfair.

(4)  The discriminatory act of the authorities towards non-refoulement claimants in the quick disposal of non-refoulement cases is unacceptable and is detrimental to the spirit of the judicial system.

Analysis and disposition

12.In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will take into account: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted.

13.Pursuant to Order 53, rule 3(4) of the Rules of the High Court (Cap 4A), the applicant may appeal to the Court of Appeal against the judge’s order refusing leave within 14 days after such refusal. The judge’s order was made on 7 January 2022. The applicant took out summons in the court below on 8 February 2022. He was late for almost 2 weeks. He said in his affirmation in support that he was not aware of the time limit and had no money to employ a lawyer to act for him. This does not appear to us to be a reasonable explanation for the delay.

14.As the applicant’s delay is inexcusable, he must show a real prospect of success on merits: Secretary for Justice v Hong Kong Yaumatei Ferry Co Ltd [2001] 1 HKC 125.

15.In assessing the merits of the intended appeal, the court would adopt the legal principles which have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

16.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 decision of the judge, 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 it is a fresh application for judicial review.

17.In the present application, the applicant again raised new issues for the first time in his submissions, as he had attempted to do in his leave application before the judge. This is not permissible.

18.In any event, the applicant’s contention that he was never provided with proper legal and language assistance is incorrect. The applicant was in fact given the benefit of legal representation from the Duty Lawyer service in presenting his case to the Director. The Court of Appeal has repeatedly stated that an applicant of non-refoulement claim does not have an absolute right to free legal representation at all stages of the proceedings (Re Paswan Shibu Lal [2018] HKCA 249 at §21). Furthermore, interpreter services were provided at hearings at every stage and at the time when the applicant was assisted by the Duty Lawyer service. The high standard of fairness required by law would not entail interpretation service being made available to an applicant all the time as he may desire (Re Gurung Sagar [2019] HKCA 658 at §12).

19.As for the remaining contentions in the applicant’s written submissions, they are simply bare assertions. The applicant failed to demonstrate that the judge had made errors of law or failed to take account of relevant matters placed before the court or was otherwise plainly wrong in refusing to grant leave to bring judicial review.

20.For the above reasons, there is no prospect of success in the applicant’s intended appeal. We refuse to exercise our discretion to grant extension of time to appeal against the judge’s decision of 7 January 2022 and dismiss the summons filed on 19 April 2022.

The Applicant, acting in person