Re Malairaj Sathiyandiran

CAMP 371/2021

[2022] HKCA 1493

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 371 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 2943 OF 2018)

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Before:  Hon Yuen and Barma JJA in Court

Date of Judgment:  10 October 2022

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J U D G M E N T

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

1.On 23 January 2020, DHCJ K.W. Lung (“Judge Lung”)  refused to grant leave to the applicant to apply for judicial review concerning his non-refoulement claim (“the JR Decision”). Under Order 53 r.3(4)  Rules of the High Court (“RHC”), where an application for leave to apply for judicial review is refused by a judge, the applicant may appeal against the judge’s order to the Court of Appeal within 14 days after such order.

2.The applicant did not lodge an appeal in time.  He filed a summons in the Court of First Instance on 29 September 2020 for extension of time to appeal against the JR Decision.  The summons was dismissed by DHCJ P. Li (“Judge Li”)  on 23 February 2021. 

3.On 6 September 2021, the applicant filed a summons in CAMP 371/2021 (“the Summons”)  in the Court of Appeal applying to this court for an extension of time to appeal the JR Decision.

4.Pursuant to the directions made by the Registrar of Civil Appeals on 6 September 2021, the applicant should lodge his written submissions on or before 20 September 2021.  He failed to do so.  It was further directed that in the event the applicant failed to lodge his written submissions, he shall be deemed to have abandoned his right to rely on written submissions, and the matter will be referred to the Court of Appeal for determination based on the available materials. 

5.Under Order 59 r.14A(1)  RHC, this Court may determine an application for extension of time to appeal without an oral hearing.  We are of the view that it is appropriate to determine the present application on paper without a hearing.  

Background

6.The applicant is an Indian national.  He arrived in Hong Kong on 11 April 2016 as a visitor and was allowed to stay until 25 April 2016.  He overstayed and surrendered himself to the Immigration Department on 27 April 2016.  On 3 June 2016, he lodged a non-refoulement claim alleging that if refouled, he would be harmed or even killed by Muniyasamy (“M”)  or his family members for causing the suicide of M’s cousin Diviya (“D”), the applicant’s former girlfriend who he met at university.  The applicant also claimed that her family was closely related to All India Anna Diravida Munetra Kalagam (AIADMK) Party. The factual background of this case was succinctly summarised by the Judge at [4] of the JR Decision ([2020] HKCFI 248).

7.By a Notice of Decision dated 27 September 2017, the Director of Immigration (“the Director”)  had decided against the applicant’s claim.  The Director’s decision covered the BOR 2 risk[1], the BOR 3 risk[2], the torture risk[3] and the persecution risk[4]. 

8.The applicant appealed the Director’s decision to the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”).  The applicant attended an oral hearing on 20 July 2018.  By its decision dated 23 November 2018, the Board dismissed the appeal and confirmed the Director’s decision.  For the reasons set out at [30] to [42], the Board found that the applicant’s evidence was vague, inconsistent and implausible, and rejected his case that he had been in a relationship with D, whose family had opposed their relationship due to the applicant’s caste, or political difference between the two families.  It further rejected the applicant’s allegation that D’s family had threatened or assaulted the applicant and his family on the ground that D had committed suicide because the applicant broke up with her.  As such, the Board did not consider the applicant would face any real risk of harm if refouled. For the aforesaid reasons, his non-refoulement claim was rejected on all applicable grounds.

Application for leave to start judicial review

9.On 21 December 2018, the applicant filed a Form No. 86 to apply for leave to judicially review the Director’s and Board’s decisions.  As explained at [11] of JR Decision, the Director’s decision is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the board is pursued by the applicant.  Hence, the Judge mainly focused on the applicant’s following grounds:

(1)  There was no legal assistance or language assistance for his appeal or for him to understand the Board’s Decision, whereas in other cases, the applicants had translation assistance, and thus he had been unfairly treated.

(2)  The Immigration Department / the Board had adopted a very uninformed approach in rejecting all non-refoulement claims.

(3)  The Board did not address the issues against the Director. It only made the assessment on more or less a template basis.

(4)  High standards of fairness were not attained.

The JR Decision

10.The applicant attended an oral hearing on 24 July 2019.  After due consideration of the decisions of the Director and the Board, the Judge refused leave for judicial review of the Board’s decision for reasons set out in [16] - [22] of the JR Decision:

“The Board’s Decision

16.  The applicant appeared before me. He confirmed that he had been able to speak freely and tell his stories fully to the Immigration officer and the Adjudicator. His lawyer had explained the Director’s Decision to him. His friend had assisted him with the hearing bundle and the Board’s Decision. In fact, according to his statement to the Director, he was a university student himself.

17.  It is obvious that as the Board rejected all of his evidence on the salient facts in support of his claim. Therefore, he has no factual basis for his claim.

18.  The Court of Appeal held in Ali Haider CACV8/2018, [2018] HKCA 222 at §§ 13 & 14

‘13. Evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them. The court will not usurp their roles as primary decision makers….

14.   Determination of the merits of a non-refoulement claim is essentially a matter for the Director and for the Board, not for the court.’

19.  The Court of Appeal in Re Sharma Poonam [2019] HKCA 804, 19 July 2019 held:

‘16. It has been decided in Hong Kong that the high standard of fairness required by law would not entail an interpretation service being made available to an applicant all the time as she may desire: see Re Gurnishan Singh [2018] HKCA 704; Re Gurung Sagar [2019] HKCA 658.’

20.  Grounds (1)  and (4)  fail.

21.  Grounds (2)  and (3)  are his opinions without any evidence in support. They fail too.

22.  The applicant fails to show that he has a reasonable prospect of success in his proposed judicial review.”

Application for extension of time to appeal the JR Decision

11.As mentioned earlier, the applicant failed to file a notice of appeal within time.  He filed a summons in the Court of First Instance on 29 September 2020 for an extension of time to appeal.  That was dismissed by Judge Li on 23 February 2021.  Hence, the Summons to this court. 

Discussion

12.In considering whether to extend time for appealing, the Court will have regard to: (1)  the length of delay; (2)  the reasons for the delay; (3) the prospect of success of the intended appeal; and (4)  the prejudice to the putative respondent if extension of time was granted (although the lack of prejudice does not mean an extension will be granted). 

13.As for (1), the applicant was late by some 7 months between the deadline for filing his appeal against the JR Decision and the summons filed in the Court of First Instance.  His delay was substantial.

14.As for (2), the reasons for the delay, in the applicant’s supporting affirmation filed on 29 September 2020, he explained that he was illiterate and legally unrepresented and therefore, he was not aware of the 14-day requirement for appeal.  At the hearing, he further explained that he was imprisoned for 10 months in 2019 for the offence of taking up unauthorized employment, and he was then detained in Castle Peak Bay Immigration Centre after serving the sentence.   

15.The applicant has not proffered good reasons for his delay.  The JR Decision was sent to his home address.  His detention was not advanced in his affirmation as a reason for the delay.  As for his claim of illiteracy, on his own case he had attended university. 

16.The most important consideration however is (3)  the prospect of success of the intended appeal from the JR Decision.  In the applicant’s supporting affirmation filed on 29 September 2020, he complained that the JR Decision was unfairly made and Judge Lung did not allow him an opportunity to clarify his case and the situation in his home country.

17.In the Summons and supporting affirmation filed in this Court, the applicant failed to provide any ground of appeal against the JR Decision save for repeating the complaint in his affirmation filed on 29 September 2020.

18.It is clear from the Board’s decision that the applicant’s claim was rejected on the issue of credibility as his evidence was vague, inconsistent and implausible, and he was unable to give a satisfactory explanation on issues pertaining to key elements of his case.  The applicant was inconsistent in his allegations as to how D contacted him after he had left his mobile phone with his uncle [37].  He was even inconsistent about the date of his own father’s death (giving dates 4 years apart: [35]).  This was relevant to his allegation that he had only told his parents and an uncle where he had moved to, to avoid M.  It was perfectly open to the Board to reach its findings and conclusions, and the Court would only intervene if there were valid public law grounds.  As with Judge Lung, we do not see any in this case.

19.Regarding the applicant’s complaint that Judge Lung did not give him an opportunity to clarify his case and to explain the situation in his country, this is a bare assertion with any supporting evidence.  Further, it is trite that the role of the Court in a judicial review is not to provide a further avenue of appeal, and the hearing for application for leave to apply for judicial review is not a re-hearing of the applicant’s case.  The primary decision makers are the Director and on appeal, which operates as a re-hearing, the Board.  Assessment of evidence and risk of harm are primarily within the province of the Board.  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.  As the applicant had failed to advance any valid grounds pointing to any such errors in the Board’s decision, Judge Lung was plainly rightly in refusing the applicant’s application.

20.In all, we are satisfied that Judge Lung had reviewed the Board’s decision with rigorous examination and anxious scrutiny, and we find nothing amiss in the JR Decision.  

21.As the intended appeal is unarguable, it would be futile to extend the time to appeal.  Accordingly, we dismiss the applicant’s summons filed on 6 September 2021.

The applicant, unrepresented, acting in person