RE ALAGAR VELAUTHAM

CAMP 306/2021

[2022] HKCA 1131

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 306 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 1811 OF 2018)

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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 9 July 2020, DHCJ K W Lung (“the Judge”)  refused to give the applicant leave 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 17 August 2020 for extension of time to appeal.  That summons was dismissed by the Judge on 26 July 2021.

3.  On 30 July 2021, the applicant filed his summons in CAMP 306/2021 (“the Summons”)  in the Court of Appeal applying to this court for an extension of time to appeal the JR Decision.

4.  In compliance with the directions made by the Registrar of Civil Appeals on 30 July 2021, the applicant lodged his written submissions in support of the Summons on 4 August 2021.

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 a national of Sri Lanka.  He came to Hong Kong illegally and was arrested by police on 26 November 2007.  He lodged his torture claim made under Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment on 19 January 2008 which was later taken as a non-refoulement claim assessed under the unified screening mechanism.  The applicant’s claim was made on the basis that if refouled, he will be harmed or even killed by the army and/or police because of his suspected involvement with the Liberation Tigers of Tamil Eelam (“LTTE”), a terrorist organization in Sri Lanka.  He was also suspected to be involved in a rape and murder case of a policeman’s daughter.  The factual background of this case was succinctly summarised by the Judge at [4] – [9] of the JR Decision ([2020] HKCFI 1466).

7.  By a Notice of Decision dated 20 January 2017, the Director of Immigration (“the Director”)  decided against the applicant’s claim. The Director’s decisions 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 21 December 2017.  By its decision dated 13 June 2018, the Board dismissed the appeal and confirmed the Director’s decision.  For the reasons set out in [62] to [90], the Board found that the applicant’s evidence was inconsistent with the versions he mentioned in the Torture Claim Form and the record of interview with the Immigration officer, and that the applicant had “completely misshaped and reshaped” his account of 3 occasions of detention by army officers in Sri Lanka.  Although the applicant had provided some photographs showing some old scars on his body, the Board found it difficult to tell, in the absence of any medical evidence, if those old scars were caused by the injuries allegedly inflicted during his detentions by the army officers.  The most important discrepancy was the applicant’s failure to refer to the rape case in the hearing and when he was reminded of the same, he just said the rape case was not a reason for the 3 occasions of detention.

9.  Even on his account of events, the Board found no evidence to suggest a real risk that the applicant is still wanted by the Sri Lankan authorities for involvement with the LTTE or the rape case after the long lapse of time.  Relevant country of origin information (“COI”)  suggested that the current Sri Lankan government only targeted 4 categories of persons: (a)  individuals who post threats to the integrity of Sri Lanka as a single state; (b)  journalists or human rights activists who criticized the government; (c)  potential or actual war crimes witnesses and (d)  persons on a computerized “stop” list accessible at the airport.  It was found that the applicant did not fall into any of the categories.  For the aforesaid reasons, the Board concluded that there is no real risk that the applicant would be subjected to any of the proscribed ill-treatments upon his return to Sri Lanka and his non-refoulement claim was rejected on all applicable grounds.

Application for leave to start judicial review

10.  On 3 September 2018, the applicant filed a Form No. 86 (naming the Director as proposed respondent)  to apply for leave to judicially review the Board’s decision.  In his supporting affirmation, he said that what he told the Board was true.

The JR Decision

11.  Although the applicant did not request for an oral hearing, he was invited by the Judge to attend a hearing so that the court could better explain the purpose of judicial review to him and to examine if the parties in his Form 86 were correct.

12.  At the hearing, the Judge, pursuant to Order 20, rule 8 and Order 53, rule 3(6)  of RHC, ordered that the Form 86 be amended by deleting the Director and replacing him with the Board as proposed respondent and by adding the Director as interested party.  After due consideration of the decisions of the Director and the Board, the Judge refused leave to apply for judicial review for reasons set out in [17] - [20] of the JR Decision:

“17.  The applicant appeared before me and he confirmed that he was treated fairly when he appeared before the immigration officer and the Adjudicator of the Board. His lawyer had explained the Director’s Decision to him. He said that he was not clear about the Board’s Decision. I explained it to him. He said that he understood it. He had no comments on the Board’s Decision.

18.  In Nupur Mst v Director of Immigration [2018] HKCA 524 §14, the Court of Appeal held that 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 and the 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.  There is nothing to show that the Board had committed any error in its application of the law to his case or in coming to its conclusions on the facts of the case.

20.  The applicant is unable to show that he has any reasonable prospect of success for his intended judicial review.”

Application for extension of time to appeal the JR Decision

13.  As mentioned earlier, the applicant was late in filing a notice of appeal against the JR Decision.  He filed a summons in the Court of First Instance on 17 August 2020 for extension of time to appeal.  That was dismissed by the Judge on 26 July 2021.  Hence, the Summons to this court.

Discussion

14.  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).

15.  As for (1), the applicant was late by almost 8 days between the deadline for filing an appeal against the JR Decision and the summons filed in the Court of First Instance, not counting the time in August: section 31 of the High Court Ordinance.

16.  As for (2), the reasons for the delay, the applicant explained in his summons and supporting affirmation filed on 17 August 2020 that he did not receive the JR Decision on time and it was “because of my address”.  In the Summons, supporting affirmation and written submissions filed in this Court, he further said that the JR Decision did not reach his address on time as he lived in a remote area and he did not “have any idea about appeal”.

17.  The court file shows that the JR Decision was sent to the applicant at his last reported address (which is the same address as that stated in his summons for extension of time)  on the day it was handed down, and it was not returned through the post.  Further, the applicant was able to file the present summons in this court on 30 July 2021 after the Judge refused to extend time on 26 July 2021.  In the circumstances, we are not satisfied that the applicant has provided any good reasons for his delay.

18.  The most important consideration is (3)  the prospect of success of the intended appeal from the JR Decision.  The applicant did not raise any proper ground of appeal against the JR Decision.  It is plainly right for the Judge to conclude that there is no realistic prospect of success in the intended appeal and to refuse leave.

19.  The applicant has failed to provide any grounds to reverse the JR Decision.  In his written submissions, he complained that the Director and the Board had failed to take into account and/or give proper weight to relevant considerations and materials which they should have, and hence, the decisions are illegal.

20.  It is clear from the Board’s decision that the applicant’s claim was rejected for lack of credibility as his evidence was inconsistent and implausible.  Even on his own account of events, the Board was not convinced that he would face any real risk of harm upon his return to Sri Lanka after the long lapse of time and as he is not within the target groups.  It was perfectly open for the Board to reach those findings and conclusions and the Court would only intervene if there were valid public law grounds.  As with the Judge, we do not see any in this case.  We are also satisfied that the Judge 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 30 July 2021.