RE ARALIYA KANKANAMGE NADEEP SURANGA

CAMP 523/2021

[2022] HKCA 687

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 523 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 867 OF 2019)

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

Introduction

1.  This is an application for extension of time to appeal against the decision of Deputy High Court Judge To (“Judge”) on 6 July 2021[1] refusing to grant leave to apply for judicial review. The intended judicial review is against the decision of the Director of Immigration (“Director”) dated 13 October 2017 refusing to allow the applicant to make a subsequent non-refoulement claim.

2.  On 3 November 2021, Deputy High Court Judge Suffiad refused to extend time for the applicant to appeal against the Judge’s decision of 6 July 2021.[2]

Background

3.  The applicant is a Sri Lankan national. He previously made a torture claim in Hong Kong on 3 November 2005, but he wrote to the Immigration Department on 5 September 2011 to withdraw that claim. The prior torture claim was treated as withdrawn on 15 September 2011, and the applicant left Hong Kong on 3 November 2011.

4.  Subsequently, the applicant returned to Hong Kong. On 20 August 2015, he made a written request to make a non-refoulement claim under the Unified Screening Mechanism (“USM”), followed by 4 subsequent written representations between October 2015 and July 2017. The applicant’s claim was based on the fear that, if he returned to Sri Lanka, he would be harmed or even killed by the United People’s Freedom Alliance (“UPFA”) due to his involvement with the United National Party (“UNP”). This claim was a “subsequent claim” within the meaning of section 37ZO of the Immigration Ordinance (Cap 115), which is defined in section 37U to mean “a torture claim by a person who has previously made a torture claim that has been finally determined or withdrawn”.

5.  Section 37ZO provides as follows:

“ (1) Except as provided in subsection (2), a person who has previously made a torture claim must not subsequently make another torture claim.

(2) A person may make a subsequent claim if the person provides sufficient evidence in writing to satisfy an immigration officer that—

(a) there has been a significant change of circumstances since the previous claim was finally determined or withdrawn; and

(b) the change, when taken together with the material previously submitted in support of the previous claim, would give the subsequent claim a realistic prospect of success.”

6.  Similarly, section 37ZE provides that a torture claim that has been withdrawn may be re-opened if the claimant provides sufficient evidence in writing that:

“ (a) since the withdrawal, there has been a change of circumstances that—

(i) could not reasonably have been foreseen by the person when the person gave the notification under subsection (1); and

(ii) when taken together with the material previously submitted for the claim, could increase the prospect of success of the claim; or

(b) by reason of special circumstances, it would be unjust not to re-open the claim.”

7.  On 14 September 2017, the applicant was requested to provide information and elaborate upon the change of circumstances in his non-refoulement claim, but he did not submit any further information.

8.  By notice of decision dated 13 October 2017, the Director refused to permit the applicant to make a subsequent claim. In doing so, the Director considered that there had not been a significant change of circumstances since the withdrawal of the applicant’s prior torture claim. In particular, the Director noted that in the prior torture claim, the applicant stated that he feared he would be harmed or killed by the Sri Lanka Freedom Party (“SLFP”) due to his involvement with the UNP. As the SLFP is a main constituent party in the UPFA, and the basis of the subsequent claim is the applicant’s fear of harm from the UPFA, the Director did not accept that there had been a significant change of circumstances.

The decisions of the court below

9.  On 29 March 2019, the applicant sought leave from the Court of First Instance to apply for judicial review. Although the Form 86 refers to the Director’s letter dated 25 February 2019 as the decision in respect of which relief was sought, that letter merely enclosed a copy of the Director’s decision of 13 October 2017, as the applicant had written to the Director on 8 February 2019 stating that he had not received any notice of decision in his case. It is clear from the circumstances that the applicant in fact intended to seek judicial review of the Director’s decision of 13 October 2017, and the court below was prepared to treat his application as such.

10.  In his Form 86 and supporting affirmation of the same date, he stated that the Immigration Department refused to take his USM case and that the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“Board”) refused to take his appeal. However, he did not raise any specific grounds for judicial review.

11.  Following a hearing on 30 June 2021 attended by the applicant, on 6 July 2021 the Judge refused to grant leave to apply for judicial review. His reasons were set out at [18] – [23] of the Form CALL-1 as follows:

“ 18. The Applicant’s application is badly misconceived. He sought leave to apply for judicial review of the decision of the Director in his 2019 Letter. The Director has not made any decision relating to the Applicant in that letter. In that letter, the immigration officer only gave him a copy of the Notice dated 13 October 2017. For this reason alone, the Applicant’s application must be dismissed.

19. If the Applicant intended to seek leave to apply in respect of the Director’s decision in the Notice dated 13 October 2017, he is badly out of time by one year and two months. Under section 21K(6) of the High Court Ordinance and Order 53, rule 4(1) of the Rules of the High Court, an application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when the grounds for application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made. Good reason requires at least a valid explanation for the delay and merits in the substantive application: AW v Director of Immigration and William Lam³.

20. The Applicant offered no explanation for the long delay of one year and two months. All that he could say was that the secretariat of the Board required him to produce supporting documents which he needed time to obtain. From the procedural history, it can be seen that the Applicant just slept on the matter for a year after knowing of the Notice.

21. As for merits, insofar as the Applicant sought to challenge the Director’s decision and findings of facts in the Notice, it should be noted that the role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration⁴. This Court could not replace the Director’s findings of facts with that of its own.

22. There is no dispute that the Applicant had made a Previous Claim and withdrew it. There is no dispute that he provided no additional information to support a change of circumstances to justify re-opening his application for non-refoulement protection. He might not have received the Director’s invitation to provide information due to his change of address. He has to bear the consequence for any delay caused by his failure to notify the Director of his change of address.

23. Having rigorously examined the Notice, the papers and the evidence with anxious scrutiny, the Court was satisfied that the immigration officer had correctly referred to section 37ZE. It was on that basis that the immigration officer found there was no factual basis to support the Applicant’s claims for re-opening his application for non-refoulement protection. These are findings of facts which are exclusively within the province of the Director as the decision maker, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality. The decision in the Notice was utterly without fault. The Applicant’s claims are not reasonably arguable. There is no realistic prospect of success in the proposed judicial review of the decision of the Director in his Notice of Decision dated 13 October 2017. If the Applicant really wished to challenge the decision of the immigration officer, he should invoke appeal procedures by appealing to the Board. The Board will hear the appeal by way of a rehearing and make its own finding of facts.”

12.  On 3 August 2021, the applicant took out a summons to seek an extension of time to appeal against the Judge’s decision. In the summons he explained that he was unable to submit his appeal in time because he found the Judge’s order and letter late in his letter box. He also stated that he still has problems in his country.

13.  Following consideration of the documents only, on 3 November 2021, Deputy High Court Judge Suffiad refused to grant an extension of time to appeal, as he did not see any prospect of success in the intended appeal, and dismissed the summons.

The renewed application before this Court

14.  On 17 November 2021, the applicant filed a summons in this Court to seek an extension of time to appeal against the Judge’s decision dated 6 July 2021 refusing leave for judicial review. In the summons, the applicant stated that he had a “life problem” from his enemies in his country and that he was unable to submit his supporting documents in time due to COVID-19 and a lockdown in his country. In his supporting affirmation, the applicant stated that the Immigration Department never held any USM interview with him and that the Board said it could not take any action without an appeal form. He exhibited a letter written apparently by his father to the UNHCR Hong Kong dated 18 December 2012 by which an affidavit of the applicant’s father was sent to the UNHCR. The applicant also exhibited a copy of an affidavit made by his father, but this affidavit was dated 21 October 2021 and cannot therefore be the affidavit referred to in the letter. Although the applicant has failed to make any application for permission to adduce this new evidence, we have read it de bene esse. The father’s affidavit stated that the applicant had, after completing his formal education, engaged in political activities as a strong activist of the UNP and as such had political enemies and opponents who targeted him and that his life was under threat. The father stated it was his strong view that the applicant’s life could be saved if he could live away from Sri Lanka to avoid his political enemies.

15.  On 17 November 2021, the Registrar of Civil Appeals directed that the applicant must lodge his written submissions with the court by 1 December 2021, failing which the application would be processed based on the available documents and materials.

16.  The applicant has failed to lodge any written submissions to date. We consider it appropriate for this application to be disposed of on the papers without a hearing, based on the available documents and materials.

Discussion

17.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court (Cap 4A), an applicant has 14 days to lodge an appeal against a judge’s refusal to grant leave to apply for judicial review. In considering whether to extend time, the court will have regard to: (1) the length of delay; (2) the reasons for the delay; (3) the intended appeal’s prospect of success; and (4) the prejudice to the respondent if an extension of time is granted.

18.  The applicant’s intended appeal was late by 11 days, not counting the court’s Summer vacation in August. The delay was not lengthy. However, in his summons of 3 August 2021 in which he provided his explanation for the delay, he did not specify the date on which he received the Judge’s decision in his letter box. Without the full information we are not satisfied that there is a satisfactory reason for the delay. We have nevertheless proceeded to consider the merits of the intended appeal.

19.  “Subsequent claims” are governed by the mandatory provisions of statute as mentioned above. In the present case, the applicant had failed to provide further information as requested by the Director, to demonstrate the change of circumstances. The Director refused to permit the applicant to make a subsequent claim for non-refoulement protection on the ground that that there had not been a significant change of circumstances, and gave rational reasons for coming to that conclusion. Such a decision is within the province of the Director, and the court will not interfere unless it is vitiated on public law grounds. No such grounds have been raised by the applicant. Indeed, even now, the applicant has not put forward any significant change of circumstances to justify re-opening his withdrawn claim or allowing him to make a subsequent claim. His father’s affidavit exhibited to the applicant’s affirmation filed in this Court likewise failed to show any significant change in circumstances; on the contrary, it appears to suggest that the applicant had during all material times faced danger in Sri Lanka. Accordingly, the Judge cannot be faulted for coming to the conclusion that there is no reasonably arguable ground for judicial review.

20.  The applicant has also failed to point to any error in the Judge’s decision or reasoning. Without viable grounds of appeal, there is simply no prospect of a meaningful appeal. It is not the function of this court to examine the decision of the administrative decision-maker as if the appeal were a fresh application for leave to apply for judicial review. In our view the Judge was right to refuse leave.

21.  For these reasons, we dismiss the summons for extension of time to appeal.