RE MOHAMMAD FALEEL ASADHORE alias MOHAMED FALEEL ASADHORE alias ARCHCHEGE THEWANKAC CHANDRAWSOMA MAPETEGMA

CAMP 137/2024, [2024] HKCA 938

On appeal from [2022] HKCFI 19

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 137 OF 2024

(ON AN INTENDED APPEAL FROM HCAL NO. 2061 OF 2018)

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J U D G M E N T

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

1.  This is the applicant’s renewed application for extension of time to appeal against the decision of Deputy High Court Judge P Li (“the Judge”)  dated 5 January 2022[1] dismissing his application for leave to apply for judicial review.

2.  The applicant has filed a supporting affirmation, which contains a four-page submission, to support his application. 

3.  Under Order 59 rule 14A(1)  of the Rules of the High Court, Cap. 4A, this Court may determine an application for extension of time to appeal without an oral hearing.  Having considered the papers filed in the application, we are of the view that it is appropriate to determine the present application on paper without a hearing.

4.  The applicant is a national of Sri Lanka, now aged 46.  In April 2001, he came to Hong Kong as a visitor. He overstayed and   was deported on 15 July 2002.  On 21 July 2005, he entered Hong Kong as a visitor under a different identity.  He again overstayed.  He was arrested by the police on 13 September 2006 and sentenced to 8 months’ imprisonment for breach of deportation order.  In 2006, he made a torture claim.  After his failure to file the required questionnaire despite repeated time extension and his failure to give instructions to the Duty Lawyer, the Director of Immigration (“the Director”)  treated his claim as withdrawn on 25 December 2012.  He did not appeal against the decision.

5.  On 31 January 2013, the applicant lodged a non-refoulement claim.  The basis of his claim and the events relied on by him were summarised by the Judge in [6] to [20] of Form CALL-1.  It is not necessary to repeat them here.  In gist, the applicant asserts that if he were refouled to Sri Lanka, he would be interrogated by the police about an incident of attack, and would also be investigated for his use of another person’s identity.  He claims that he will not have any family support as his family members were killed in the tsunami in 2004, and the event has also left him psychologically disturbed.

6.  By a decision dated 17 November 2017, the Director rejected the applicant’s claim having regard to the BOR 3 risk[2], persecution risk[3] and BOR 2 risk[4] grounds.  There was no assessment under the torture risk[5] ground in light of the previous dismissal of the torture claim.  The Director’s reasons were summarised by the Judge in [21] of the Form CALL-1. 

7.  The applicant appealed the Director’s decision to the Torture Claims Appeal Board.  Two oral hearings were held on 31 July and 1 August 2018 during which the applicant gave evidence and answered questions from the Board. 

8.  By its decision given on 20 August 2018, the Board dismissed the appeal having regard to all the four applicable grounds.  The Board rejected the applicant’s evidence and assertions, and concluded that he fabricated the bases of his claim.  The Board’s decision and reasons were summarised by the Judge in [24] to [27] of the Form CALL-1.  

9.  On 27 September 2018, the applicant filed a Form 86 together with an affirmation to apply for leave to judicially review the Board’s decision.  No grounds for seeking relief were set out in the Form 86 or supporting affirmation.  The applicant did not request for an oral hearing. The Judge dealt with the application on paper.  By the Form CALL-1 dated 5 January 2022, the Judge refused to give leave for applying for judicial review, finding that the intended judicial review was not reasonably arguable and had no reasonable prospect of success.  The Judge gave his reasons at [30] to [33] as follows:

“30. In judicial review, this court is to decide whether there is any error in law and procedure. Whether the decision of the TCAB is irrational. The finding of facts is the duty of the TCAB. In general, this court would not interfere.

31. The applicant had not pointed out any specific error in the decision of the TCAB.

32. I agree that the adjudicator was entitled to consider the content of the 1^st questionnaire and the CAT interview despite that he was not assisted by a lawyer. At that time, the applicant was expected to set out the full factual background of his claim. This exercise did not involve construction of any legal term or law. His recollection should be clearer than the time of the subsequent SCF. The presence of a lawyer would not assist his recollection. In fact, the applicant was given a copy of the 1^st questionnaire and CAT interview. He was allowed ample time to explain the inconsistencies during the TCAB hearing. Although the applicant elected not to rely on those documents later, he had not given any reason which could discount the accuracy of the information therein.

33.  The adjudicator was also fair to consider the torture risk on the merits. I agree with his decision. In my judgment, there is no error of law or procedure. The TCAB decision is rational.”

10.  Pursuant to Order 53, rule 3(4)  of the Rules of the High Court, the applicant may appeal to the Court of Appeal against the Judge’s decision within 14 days after it was made.  The 14-day period for the applicant to appeal ended on 19 January 2022.

11.  By a summons filed on 11 January 2024, the applicant applied for an extension of time to appeal the Judge’s decision.  Deputy High Court Judge To (“DHCJ To”)  dealt with the application on paper, and by his decision handed down on 13 March 2024[6] refused the application.

12.  The applicant now makes a renewed application to this Court. In considering whether to extend time for appealing against the refusal of leave to apply for judicial review, we 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.  The applicant was late by almost two years, which is very serious delay.  In the Court below, at DHCJ To’s direction, the applicant had provided some explanations for the delay.  DHCJ To accepted that the applicant did not know about the Judge’s decision because he had changed his address in December 2021 without informing the Court.  He, however, noted that In October 2022, the court had, upon his request, provided the applicant with a copy of the Form CALL-1 and the Judge’s order.  DHCJ To considered that the applicant had no explanation for his inaction between October 2022 and the issuance of the summons for leave to appeal on 11 January 2024.  In the present application, the applicant asserted that he did not have money to make the appeal.  He also explained that he required help from other people to write out his grounds for appeal.  In our view, as DHCJ To pointed out, the duty is on the applicant to inform the court of any change in his address, which he had failed to do.  Further, even accepting all his explanations, the serious delay between October and 11 January 2024 has not been satisfactorily explained.

14.  We turn next to consider the merits of the intended appeal, which is the most important consideration.  We 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].  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.  It is not the role of this court to examine the decision of the primary decision maker afresh as if it is a fresh application for judicial review.

15.  The applicant put forward the following grounds of appeal in his affirmation:  

(1)  The Director ignored many things in the applicant’s case.

(2)  The Board failed to consider the applicant’s mental suffering and he was wanted by the police in Sri Lanka as well as the country-of-origin information which shows that the police and judicial system in Sri Lanka are corrupt with and torture and deaths being common there. 

(3)  The Board was wrong to consider that the applicant did not face any risk if refouled to his country, and that internal relocation was viable.

(4)  The Board failed to consider the torture risk, BOR 2 and BOR 3 grounds.  

(5)  The Judge’s decision was reached unfairly as the applicant was not given an opportunity to clarify his case and the situation in his home country. 

(6)  The Judge’s decision was unfair and only favoured the Director and the Board.   

16.  For the reasons discussed below, we are of the view that the matters put forward by the applicant do not constitute viable grounds of appeal:

(1)  First, and importantly, the Court will only interfere with the Board’s assessment of risk and its decision if it can be demonstrated that they are erroneous in law or irrational or there is procedural irregularity or unfairness.  Finding of credibility and facts as well as assessment of the evidence and risks of harm are for the Board, who is the primary decision maker.  In this case, the Board found the applicant’s evidence incredible and did not accept his claim.  In his Form 86 and supporting affirmation, the applicant did not set out any grounds for seeking relief or make any challenge to the reasons and findings of the Board.  This being the case, the Judge’s conclusion that the intended judicial review has no reasonable prospect of success cannot be faulted.

(2)  Second, it follows that the complaint that the Board did not consider he would face risk of harm in his country or the assertion that internal relocation is not viable are unarguable. This is because the applicant’s claim is simply not supported by any factual foundation. 

(3)  Third, it is incorrect to assert that the Board did not consider his case under the torture risks, BOR 2 and BOR 3 grounds.  In truth and in fact, the Board had given due considerations to all the applicable grounds. 

(4)  Fourth, as to the complaint levelled at the Director’s decision, the applicant has not provided any particulars. In any event, the Director’s decision is no longer material or relevant given that the applicant had already appealed it to the Board. 

(5)  Fifth, on the complaint that the applicant was not given the opportunity to be heard, it should be pointed out that she did not request an oral hearing in the Form 86 or the supporting affirmation.  The applicant also did not provide any grounds for seeking relief.  In the circumstances, the Judge was entitled to determine the application on the basis of the documents under Order 53 rule 3(3)  of the Rules of the High Court. 

(6)  Sixth, the applicant’s complaint that the Judge’s decision was unfair is a vague and general unsupported by particulars.

17.  We have separately considered the Board’s decision.  We do not discern any legal errors, irrationality or procedural irregularities.  There is no proper basis for this court to disturb the Board’s assessment and findings and its conclusion that the applicant’s entitlement to non-refoulement protection was not made out under the applicable grounds. 

18.  For the above reasons, the applicant’s intended appeal has no prospect of success.  This being the case, it would be futile to extend the time to appeal.  Accordingly, we dismiss the summons filed on 25 July 2024.