Re Biju Matthew Alias Tom Thomas Mathew Alias Anthony Saviel Alias John George Joseph

CACV 70/2025, [2025] HKCA 706

On appeal from [2025] HKCFI 553

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 70 OF 2025

(ON APPEAL FROM HCAL NO. 667 OF 2020)

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JUDGMENT

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

1.This is an appeal against the decision of Deputy High Court Judge Levy (“the Judge”) given on 7 February 2025[1] refusing to extend time for the applicant to apply for judicial review and dismissing his application for leave to apply for judicial review against the decision dated 8 August 2019 of the Torture Claims Appeal Board (“the Board”) dismissing the applicant’s appeal against the decision dated 30 October 2017 of the Director of Immigration (“the Director”) which rejected the applicant’s non-refoulement claim.

2.The applicant’s appeal was scheduled to be heard on 18 July 2025.  The applicant was directed to lodge his written skeleton argument not less than 28 days before the hearing and further warned that if he failed to do so, he shall be deemed to have waived the right to have an oral hearing and the hearing date would be vacated with his appeal being determined on paper. This was communicated to the applicant by the Court’s letter dated 19 May 2025 and the Notice of Hearing dated 2 June 2025. 

3.Despite the directions, the applicant has failed to lodge a skeleton argument by the stipulated time. The hearing date was accordingly vacated, and we have proceeded to process this appeal on paper based on the available materials.  

The applicant’s claim

4.The applicant is a national of India, aged 53. He had travelled to Hong Kong from India under different identities on 23 August 1996[2], 27 May 1998[3], 1 July 1999[4], 17 December 1999[5] and 6 September 2006[6]. On each occasion, he was arrested, convicted and sentenced to imprisonment for various Customs & Excise (C&E) and/or immigration-related offences. The applicant last entered Hong Kong on 6 September 2006 and was intercepted upon arrival as a returned deportee. He was later sentenced to 18 months’ imprisonment for immigration offences and upon completion of his imprisonment term he was referred to the Immigration Department on 3 October 2007. He was released on recognizance on 12 February 2008.

5.The applicant had previously made a torture claim[7] which was rejected on 11 April 2011. His appeal to the Board was rejected on 11 May 2011. A deportation order made against him was suspended since 8 November 2011, during which the applicant was again arrested, convicted and sentenced to imprisonment for C&E offences in February to May 2016. His request for further suspension of the deportation order was refused on 7 November 2016. On 9 January 2017, he made a further non-refoulement claim. On 9 February 2017, he was again released on recognizance.  

6.The applicant’s non-refoulement claim was on the basis that, if refouled, he would be harmed or killed by the police in India as he was treated as a scapegoat in the murder of KM Varghese in 2020, who used to live in the same hostel as the applicant in Kolkata. The details of his claim were set out at [19] to [35] of the Board’s decision. The applicant claimed that he was falsely implicated in the murder case because (1) the police wanted to protect certain politicians of the Communist Party of India, the ruling party in West Bengal, and (2) two police officers were seeking revenge against the applicant, whose uncle was a principal at a school and had refused to help one of the sons of the two police officers to be admitted to the school. He claimed that he would be arrested or detained by the police in India, despite having returned to Chennai and Mumbai respectively in 2004 and 2006 without encountering any problems there. The applicant has married a Hong Kong permanent resident and they have two children born in 2005 and 2010 in Hong Kong.

The Director’s and the Board’s decision

7.The applicant’s claim was subsequently assessed on all applicable grounds other than the torture risk ground under the Unified Screening Mechanism. By a decision dated 30 October 2017, the Director rejected his claim based on BOR 3 risk[8], BOR 2 risk[9] and persecution risk[10] grounds.

8.The applicant appealed to the Board. A hearing took place on 7 February 2018 during which the applicant had testified and answered questions from the Board. By a decision given on 8 August 2019, the Board dismissed his appeal.

9.In gist, the Board found no satisfactory explanation as to why the applicant was implicated in the murder of Varghese and why the police officers would take revenge on his uncle by targeting him instead. The Board held that his account of the events lacked credibility and the reasons for the false implication inherently implausible. The Board did not accept that the applicant was a wanted person in India as he was not charged of any offences and was able to travel freely within and outside the country. Further, the Board assessed that state protection would be available to the applicant on the basis of the available country of origin information (COI) which showed there is a renewed focus in the police force to fight corruption within India and West Bengal. The Board assessed that internal relocation to cities such as Mumbai or New Delhi are viable options for the applicant. The Board concluded that the applicant failed to establish a case for non-refoulement protection under any of the applicable grounds.

The Judge’s decision

10.By a Form 86 dated 30 March 2020 which was filed on 16 April 2020, the applicant applied for leave to judicially review the Board’s decision. Order 53 rule 4(1) of the Rules of the High Court Cap.4A provides that an application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose. As the Board’s decision was dated 8 August 2019, the applicant’s Form 86 was late by more than 5 months. The applicant did not provide any ground for seeking relief or explanation for his delay.  He only stated in his supporting affirmation that his life would be in danger and he needed time to obtain relevant evidence to prove his claim because he was detained at the Castle Peak Bay Immigration Centre.  

11.The Judge held an oral hearing on 2 January 2025. By a Form CALL-1 dated 7 February 2025, the Judge refused to extend the time for the applicant to apply for judicial review and dismissed his leave application. She gave her reasons at [19] to [24] as follows:  

“19. The applicant’s Form 86 did not contain any grounds for seeking relief. In his supporting affirmation of the same date, he deposed that he was detained at the Castle Peak Bay Immigration Centre for a long time so he could not collect evidence and that his life was still in danger. Since the Leave Application was late for more than 5 months, and having regard to the contents of the applicant’s affirmation, I asked the applicant if he had any evidence to support the Leave Application. The applicant only told the court that in fact he was already released two weeks after the filing of the Leave Application. He still has not got any evidence as his sister got married and his father passed away. Apart from this, the applicant was not able to offer any explanation for the delay. Neither could he specify any mistakes or errors the Board was said to have made. It is plain that the applicant has not condescended to any particulars, in the Form 86 or otherwise, as to what basis the Board is said to have acted unlawfully or procedurally unfairly in reaching its Decision, or how such Decision could be said to be Wednesbury unreasonable.

20. I consider that the applicant's delay of more than 5 months substantial. In considering whether to extend time to apply for judicial review, the court will have regard to: (a) the length of delay; (b) the reasons for the delay; (c) the prospect of success of the intended appeal; and (d) the prejudice to the putative respondent if extension of time was granted: Re Rahman Wasif [2019] HKCA 299 at [13].

21. As stated above, the applicant has not provided any reasons for the delay. As such, the Court will only grant extension of time if his intended challenge has a real prospect of success: Re Kanwal Gulnaz [2021] HKCA 636 at [15]; Re Ansar Muhammad [2018] HKCA 227 at [8]; and Re MA [2019] HKCA 1020 at [18]

22. The Board’s Second Decision was arrived at with the benefit of a hearing, in which the Board had the opportunity of examining the applicant’s evidence in great detail. The Board’s assessment that the applicant’s lack of credibility and its findings of the availability of state protection and option of internal relocation are findings of fact, which the court in a judicial review will not interfere with.

23. Having rigorously examined the Board’s Second Decision with anxious scrutiny, this court is satisfied that the Board correctly applied the law and the key legal principles relating to all the grounds mentioned above; correctly identified the issues, and observed a very high standard of fairness in the Decisions of the Director and the Board. In the absence of any specific grounds in support of the Leave Application, I find that it was perfectly open to the Board to come to its conclusion that the applicant failed to discharge his burden of proving the asserted fears and risks.

24. For these reasons, I am not satisfied that this court should grant leave to the applicant to file the Leave Application out of time or that the Leave Application is reasonably arguable with realistic prospects of success such that would enable this court to grant leave: see Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.”

This appeal

12.On 14 February 2025, the applicant filed a Notice of Appeal to appeal the Judge’s decision. He did not provide any grounds of appeal but simply stated in the Notice of Appeal that he disagreed with the Judge’s decision and wanted to appeal against it.

Discussion

13.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 v Director of Immigration [2018] HKCA 524 at [14].

14.Further, it is well established that the assessment of evidence, COI, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director as they are the primary decision makers. The Court, in its supervisory role, will not intervene by way of judicial review unless there are errors of law, procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022 at [13].

15.In light of the established legal principles set out above, we are of the view that the appeal has no merits. Our reasons are as follows:

(1)  The applicant was more than 5 months late when he filed his Form 86, which is a substantial delay. The burden is on the applicant to show that there are good reasons for the delay, rather than a good excuse: AW v Director of Immigration and Anor CACV 63 of 2015, 3 November 2015 at [27]. Before the Judge, the applicant did not explain his delay but only stated that he had not obtained any evidence because his sister got married and his father had passed away. In the circumstances, the Judge was entitled to refuse to extend the time for the applicant to apply for judicial review for reasons given at [19] to [21] of her decision.

(2)  The Court will only interfere with the Board’s assessment of risk and its decision if it can be demonstrated that the decision is erroneous in law or irrational or there is procedural irregularity or unfairness. In his Form 86 and supporting affirmation, the applicant had not set out any ground for seeking relief or made any challenge to the reasons and findings of the Board. Further, the Judge, having scrutinised the Board’s decision at [22] of the decision, found no proper basis to disturb it. In the circumstances, the Judge’s conclusion that the intended judicial review has no reasonable prospect of success cannot be faulted.   

(3)  The applicant has also failed to identify any error in the Judge’s decision or to identify with particulars as to why he disagreed with the decision. Accordingly, there is no proper basis for the Court of Appeal to interfere with the Judge’s decision. 

Order

16.For the above reasons, this appeal is dismissed.

[1] [2025] HKCFI 553

[2] under the identity of “Matthew Biju”

[3] under the identity of “Saviel Anthony”

[4] under the identity of “Tom Thomas Matthew”

[5] under the identity of “Joseph John George”

[6] under the identity of “Matthew Biju”

[7] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115.

[8] 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.

[9] This refers to the risk of violation of the right of life under Article 2 of the Hong Kong Bill of Rights Ordinance.

[10] 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.