AHIRE SANDHYA BHASKAR v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

CAMP 466/2021

[2022] HKCA 485

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 466 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 153 OF 2019)

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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 26 February 2021, Deputy High Court Judge Bruno Chan (“the Judge”) refused the applicant’s application for leave to seek judicial review of the decisions of the Director of Immigration (“the Director”) and the Torture Claims Appeal Board (“the Board”) concerning her non‑refoulement protection claim.

2.  On 31 May 2021, the applicant applied for leave to appeal against the aforesaid decision of the Judge, which was more than 11 weeks out of time.  Her application was refused by the Judge on 7 October 2021^[1].

3.  The applicant filed a renewed application with the Court of Appeal on 19 October 2021 for leave to appeal against the decision of the Judge.

4.  The applicant is a national of India and was a Muslim before converting to Hinduism on her wedding day.  She is 73 years old.  She came to Hong Kong on 8 April 2007 on the strength of her Indian passport and was permitted to remain in Hong Kong as a visitor until 22 April 2007.  However, the applicant overstayed and only surrendered to the Immigration Department on 20 May 2014 and was released on recognizance the same day. 

5.  The applicant lodged a non-refoulement claim under the unified screening mechanism (“USM”) on 6 January 2017 on the basis that if she were to return to India, she would be harmed or killed by state authorities or the community because of her interfaith marriage (ie Hindu-Muslim). 

The Director’s decision

6.  By a Notice of Decision dated 22 February 2017, the Director rejected the applicant’s non-refoulement claim on all applicable grounds including torture risk^[2], BOR 2 risk^[3], BOR 3 risk^[4] and persecution risk^[5].  

The Board’s decision

7.  The applicant attended the hearing of her appeal against the Director’s decision before the Board on 8 January 2018.  The Board considered that even taking the applicant’s case at its highest in relation to the risk faced by couples in mixed religious marriage, there was little support for the conclusion that she would be at any risk should she return to India. Furthermore, according to her own evidence, she had never experienced any form of harm, harassment or discrimination while in India as a result of her marriage (in the space of over 40 years), her religious beliefs or on any other basis.  On her own evidence, she had come to Hong Kong for the purpose of seeking employment and not out of fear of being harmed in any way.  She did not return to India simply because she could not find her passport and again this was not out of fear of being harmed in any way.  The Board decided that the applicant had failed to establish her claim and dismissed the appeal on 18 January 2018.

The intended judicial review

8.  The applicant filed a Form 86^[6] and a supporting affirmation on 16 January 2019 to seek leave to apply for judicial review against the decisions of the Director and the Board.  However, her Form 86 did not cite any grounds for seeking relief and in her supporting affirmations she merely repeated her claim that her life would still be in danger in India without putting forward any proper ground for the intended challenge.

The Judge’s decision

9.  Having considered the papers, the Judge considered that the last day of the three-month period for the applicant to file her Form 86 fell on 18 April 2018, hence her eventual filing of the same was a delay of 9 months, which was very substantial and excessive. The applicant had failed to provide any explanation for this delay. 

10.  As for the merits of her intended application, the applicant had failed to put forward any proper ground for her intended challenge. 

11.  Having considered the decisions of the Director and the Board with rigorous examination and anxious scrutiny, the Judge could not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the applicant’s claim. 

12.  In fact, the applicant had filed an affirmation on 14 January 2021 requesting that her case be closed as she wanted to return to India.

13.  In such circumstances, the leave application was refused on 26 February 2021. 

Application for extension of time to appeal against Judge’s decision

14.  By a summons and a supporting affirmation both filed on 31 May 2021, the applicant sought an extension of time to appeal against the Judge’s decision refusing the leave application for judicial review.  The 14-day period for her to file her appeal under Order 53 Rule 3(4) of the Rules of High Court, Cap 4A ended on 12 March 2021, hence she was more than 11 weeks late with her intended appeal, which the Judge considered as very substantial. 

15.  In the affirmation dated 31 May 2021, the applicant explained that she received the judgment dated 26 February 2021 late, that she was uneducated and had no knowledge of the relevant legal proceedings and hence needed to seek advice from her friends.  She stated that she would face dangerous problems and torture if she returned to India.

16.  The Judge reviewed the court records which showed that the judgment of 26 February 2021 was sent to the applicant’s last reported address without being returned through undelivered post and held that while the applicant was in her 70s and needed to seek help from others with her intended appeal, that per se was not a good or valid reason for the non-compliance of the High Court rules.

17.  The Judge was of the view that the applicant had failed to put forward any proper or valid draft or proposed grounds of appeal or any particulars of any error in the decision or why it may reasonably be argued that the decision was unfair or unreasonable. 

18.  The Judge dismissed the application for extension of time to appeal on 7 October 2021.

Grounds of intended appeal

19.  Pursuant to a summons and supporting affirmation both dated 19 October 2021, the applicant renewed her application to the Court of Appeal for extension of time to appeal the Judge’s decision of 26 February 2021. 

20.  The applicant’s grounds of appeal in her affirmation and written submissions dated 29 October 2021 may be summarised as follows:

(1)  If the applicant returns to India she will be killed by her enemies.

(2)  The applicant is upset because she failed to apply to the Court of Appeal as a result of receiving the judgment dated 26 February 2021 late.

(3)  The Judge failed to analyse the applicant’s claim properly.

(4)  The Judge was wrong as a matter of law for not applying the principle of irrationality to the decisions of the Director and the Board.

(5)  The Judge reviewed the case “lightly” when “high standards of fairness” are required.

(6)  The decision has a significant effect on the applicant’s claim.

(7)  The Judge was wrong as a matter of law for not applying the principle of procedural unfairness to the decisions of the director and the Board because they failed to give reasons justifying their respective decisions.

(8)  The applicant has submitted all the necessary evidence.

(9)  The Board failed to give sufficient opportunity to the applicant to arrange relevant evidence for her claim as well as her appeal.

(10)  The Board significantly relied on the source of news which was not officially recognised or was simply hearsay. 

Legal Principles

21.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the Court will have regard to:

(1)  Length of the delay;

(2)  Reasons for the delay;

(3)  Prospect of the intended appeal; and

(4)  Prejudice to the putative respondent if extension of time is granted.

See Chee Fei Ming v Director of Food and Environmental Hygiene [2015] 4 HKC 134.

Analysis and disposition

Length of delay and reasons for delay

22.  The applicant was more than 11 weeks late, which is not insubstantial, when she filed the application for extension of time to appeal against the judge’s decision of 26 February 2021.

23.  The applicant merely asserted that she had not received the judgment on time.  The judgment was sent by post to her last known address and was not returned through undelivered post.

24.  As she has not provided any valid explanation for the not insubstantial delay, she must satisfy the court there are real prospects of success in the intended appeal before an extension of time will be granted: Re Ansar Muhammad [2018] HKCA 227.

Prospect of Success

25.  In assessing the merit of the intended appeal, the court would adopt the legal principles set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.  In our judgment, the intended appeal of the applicant has no prospect of success.

26.  The general propositions and assertions in the applicant’s submissions are not valid grounds of appeal.

27.  Furthermore, her complaints against the Board of procedural unfairness were not raised in the leave application before the Court of First Instance.  Hence, it is not open to the applicant to put forward these complaints as new grounds for the first time in the intended appeal, which are well outside the time limit for bringing the judicial review proceedings.  In any event, the applicant did not provide any particulars, elaboration or evidence in support of such grounds.

28.  As the Courts have repeatedly said, the assessment of the merits of the claim is a matter for the Director and the Board, who are the primary decision makers.  The Court’s focus on a judicial review application is the lawfulness and rationality of the primary decision makers’ decision and the procedural fairness of the decision-making process.

29.  For the reasons given in the Judge’s decision, the Judge considered there were no merits in the grounds put forward by the applicant.  The applicant has failed to show that the Judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong. 

30.  As the applicant does not have any prospect of success in the intended appeal, we decline to grant extension of time to appeal against the Judge’s decision of 26 February 2021.  We dismiss her summons filed on 19 October 2021.