RE MUNIYAPPAN THANGAM

CAMP 263/2023, [2025] HKCA 415

On an intended appeal from [2023] HKCFI 1201

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 263 OF 2023

(ON AN INTENDED APPEAL FROM HCAL 368/2020)

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J U D G M E N T

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

1.  This is an application for extension of time to appeal against the decision of DHCJ KW Lung dated 10 July 2023 refusing to extend time for the applicant to appeal against the decision of DHCJ To (“the Judge”) dated 5 May 2023 refusing to grant leave to the applicant to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”) dated 21 November 2019 (“the Board’s Decision”) refusing the applicant’s application for late filing of a notice of appeal against the decision of the Director of Immigration (“the Director”) dated 31 July 2018 (“the Director’s 2^nd Decision”) rejecting the applicant’s non-refoulement claim based on the persecution risk[1], the BOR 2 risk^[2] and the BOR 3 risk[3].

Background

2.  The applicant is a national of India. He entered Hong Kong on 12 February 2009 as a visitor, but he overstayed and was arrested by the police on 28 February 2009.  He lodged a torture claim on 2 March 2009, which was rejected by the Director’s Notice of Decision dated 18 January 2013 (“the Director’s 1^st Decision”).  Thereafter, by way of a written representation dated 12 April 2013, the applicant lodged a non-refoulement claim, which was assessed under the Unified Screening Mechanism on grounds other than the torture risk[4].

3.  The applicant’s claim was based on a fear of being harmed or killed by a high-ranking police officer in his locality due to his suspected involvement in a murder investigation.  The details of the applicant’s claim have been summarised by the Judge at [6] to [10] of his decision (“the CALL-1 Form”)[5].

4.  By a Notice of Decision dated 31 July 2018 (i.e. the Director’s 2^nd Decision), the Director decided against the applicant’s non-refoulement claim based on all applicable grounds other than torture.

5.  The applicant did not appeal against the Director’s 1^st Decision to the Board, but sought to appeal against the Director’s 2^nd Decision.  However, he filed the relevant notice of appeal/petition (“NoA”) late on 17 August 2018 (by one day).  The Board, after considering the applicant’s reasons for the delay as well as the merits of the applicant’s claim, dismissed the applicant’s application to file the NoA out of time on 21 November 2019 (i.e. the Board’s Decision).

The Judge’s decision

6.  The applicant filed a Form 86 (out of time) on 10 March 2020 seeking to judicially review the Board’s Decision, without setting out any grounds of review.  In his supporting affirmation, he claimed that he did not wish to return to India because his life would be in danger.

7.  After summarising the facts and background of the case and giving due consideration to the Board’s and the Director’s Decisions, the Judge refused to extend time for the applicant to apply for leave to apply for judicial review against the Board’s Decision.  The Judge gave the following reasons in refusing to grant leave at [18] to [22] of the CALL‑1 Form:

"[18]  The Applicant did not advance any grounds for judicial review in the Form 86 or supporting affirmation.  The Court took great pains to explain the above legal principle and the Board’s Decision to the Applicant.  Despite the Court’s effort in directing his mind towards explaining his delay and looking for a plausible ground of application for judicial review, the Applicant only repeatedly reiterated that he did not want to go back to his home country, that he had serious problems there and may even be killed if he returns.  He denied the explanation he gave in Section 5 of the NOA was given by him and put forward a new explanation for the delay. 

[19]  He said he had contracted Corona virus and was told not to go out.  Hence, he did not report to the Immigration Department. Thus, he was arrested by the police and the Immigration Department cancelled his application.  This is inconsistent with the objective fact that he filed the Non-refoulement Claim Form and attended the screening interview.  This is not the explanation for the delay he gave in his NOA and it does not explain his late filing of the NOA.

[20]  The Applicant denied the explanation in Section 5 of the NOA was given by him.  He said he was told to sign the NOA prepared by an immigration officer who told him to sign saying there was “no problem”.  He did not know the content of the NOA.  There was no interpreter and the content of the NOA was not explained to him.  This is inconsistent with the objective fact that the NOA was handwritten by him in Tamil and the Board acted on the basis of an English translation of the NOA written by him in Tamil.  What the Applicant asserted in this hearing is incapable of belief.  His story is also inherently incredible.  Why would the immigration officer out of his own volition encourage and assist the Applicant to appeal his own decision?  If this explanation is expunged as not having been given by him, the Applicant would be left with no explanation in Section 5 of the NOA for the late filing. This Court proceeds on the basis of the explanation given by the Applicant in the NOA and the facts as found by the Board in Paragraphs 13 to 16 of its Decision. 

[21]  In the absence of specific grounds of application, the Court in an application for judicial review could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision. The essence of the Applicant’s complaint is that he disagreed with the Director’s finding that it is safe for him to return to his home country.  In effect, he is seeking to challenge the Board’s finding of fact that he would not face any real harm or risk if returned to India.  That is not permissible unless the finding involved errors of law, procedural unfairness or irrationality.  Besides, that assertion does not explain the late filing.

Conclusion

[22]  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly set out the law and key legal principles relating to the late filing of the NOA.  It had properly directed its mind to the relevant provisions in the Immigration Ordinance, including section 37ZS, and to the three stage approach in Beghum.  It was on that basis that the Board found that he had failed to show any special circumstances for the Board to exercise any statutory discretion to extend the time limit for him to file the NOA.   These are finding of facts which are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality.  The Court could not detect any error of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings.  The Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable or irrational.  The Decision was utterly without fault.  The proposed judicial review has no realistic prospect of success.  Accordingly, extension of time to file the application for leave to apply for judicial review and the leave application are refused.”  

The present application for extension of time to appeal

8.  The applicant’s address as stated in the Form 86 was at the Castle Peak Bay Immigration Centre.  The court was subsequently notified by the Department of Justice that the applicant was transferred to Tai Tam Gap Correctional Institution (“the Institution”).  According to the court’s record, a copy of the CALL-1 Form and a sealed copy of the Judge’s order were sent by post to the applicant at the Institution on 5 May 2023.  This letter was not returned undelivered.

9.  Pursuant to Order 53 rule 3(4), the applicant had 14 days to lodge an appeal.  The applicant did not file a Notice of Appeal within 14 days of the Judge’s decision dated 5 May 2023.  

10.  The applicant took out a summons in the Court of First Instance on 14 June 2023 seeking extension of time to appeal, in which his address was also stated to be the Institution.  In the Summons and in his supporting affirmation, he repeated that his life would be in danger should he be refouled, and that the Board’s Decision was “unfair”.   

11.  The applicant’s application to appeal out of time was dismissed by DHCJ KW Lung on 10 July 2023[6].

12.  By a summons filed on 27 July 2023, the applicant renewed his application for an extension of time to appeal before this court.  In the summons and his supporting affirmation, the applicant sought an extension of time to appeal against the decision given by DHCJ KW Lung on 10 July 2023, being the court’s refusal to grant an extension of time for him to appeal against the Judge’s decision dated 5 May 2023. Although in his summons the applicant purported to appeal against the decision of the court dated 10 July 2023, we shall treat it as a renewed application for an extension of time to appeal against the substantive decision of the Judge dated 5 May 2023, by which leave for judicial review was refused.

13.  In the Summons and the supporting affirmation, the applicant repeated the dangers he may face should he be refouled, complained that “the point of [his] case was ignored”, and contended that “the Decision were not transparent”.

14.  The applicant failed to lodge any written submissions as directed by the Registrar of Civil Appeals.  He is therefore deemed to have abandoned his right to rely on the same. 

15.  Having considered the papers, we are satisfied that this application can properly be dealt with on the papers without the need for an oral hearing.  We have, therefore, determined the applicant’s application on the basis of the documents filed.

Discussion

16.  As noted above, the Judge’s decision dated 5 May 2023 was sent to the last known address of the applicant (i.e. the Institution) on the same day, and was not returned undelivered.  The inference to be drawn is that he has received that letter from the court, and he has had knowledge of the Judge’s decision within the period he was permitted to lodge the intended appeal.

17.  The applicant has failed to elaborate on how and when he had become aware of the Judge’s decision.  We are accordingly of the view that the applicant has failed to proffer any reasonable explanation or reason for his delay in lodging his intended appeal. 

18.  We have nonetheless proceeded to consider the merits of the intended appeal.

19.  The applicant has not condescended to any particulars, in the Form 86 or otherwise, as to on what basis the Board’s Decision was said to be not in accordance with the law, procedurally unfair or Wednesbury unreasonable.  That being the case, the application for leave for judicial review was hopeless and rightly dismissed by the Judge.

20.  Section 37ZT(3) of the Immigration Ordinance (Cap 115) (“the Ordinance”) provides that the Board may allow the late filing of the NoA if the applicant provided sufficient evidence in writing to satisfy the Board that (i) he had exercised all due diligence to file the NoA within the prescribed time; and (ii) his failure to do so was due to circumstances beyond his control. 

21.  Regardless of procedural breaches committed by the applicant and the lack of explanation therefor, it is incumbent on the Board, in exercise of its discretion to extend time for appeal, to consider the merits of the applicant’s claim.  See Re Khan Kamal Ahmed [2019] HKCA 377 at [20]; Re Qasim Ali [2019] HKCA 430; Re Castillo Raquel Adona & anor [2022] HKCA 1053.

22.  We note that the Board has in its decision duly considered in some detail both the applicant’s reasons for the delay in lodging the appeal, and the substantive merits of the applicant’s non-refoulement claim (see [12]-[18] of the Board’s Decision).

23.  We reiterate that an appeal (or an intended appeal) against a refusal of leave to apply for judicial review is not the occasion for this court to examine the decision of the Board afresh.  This court is only concerned with the decision of the Judge at first instance, and shall interfere with such decision only if the Judge had erred in law, failed to take into account a relevant matter or was otherwise plainly wrong.  See Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Qasim Ali at [18].

24.  Having subjected the Board’s Decision to anxious scrutiny, we do not see any reason or basis for this court to intervene.  The applicant has in any event failed to identify any arguable error of law by the Judge, any relevant matter that he had failed to consider or any other reason why the refusal of leave was wrong.  Nor can we discern any such matters.

25.  It is well-established that an appeal against a refusal to grant leave for judicial review is not a fresh application for leave, and that an applicant must point to errors on the part of the Judge.  This has clearly not been done here.

26.  For these reasons, we do not see any prospect of success in the intended appeal.  This court will not grant an extension of time for a hopeless appeal.  The summons filed on 27 July 2023 is accordingly dismissed.