RE RADHAKRISHNAN BALASUBRAMANIAN

CAMP 471/2021

[2021] HKCA 1862

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 471 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 1030 OF 2018)

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JUDGMENT

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Hon Chu JA (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 Bruno Chan (“the Judge”) dated 14 April 2021 dismissing his application for leave to apply for judicial review.

2.  The applicant has filed an affirmation and also lodged a written submission in support of 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 applicant’s summons and affirmation, we are of the view that it is appropriate to determine the present application on paper without a hearing.

4.  The applicant’s intended judicial review is against the decision of the Torture Claims Appeal Board (“the Board”) dismissing his appeal against the decisions of the Director of Immigration (“the Director”) rejecting his non-refoulement claim.

5.  The applicant is an Indian national aged 47. He entered Hong Kong on 27 June 2009 with permission to remain as a visitor for 14 days. He overstayed and was arrested by the police on 13 July 2009. On 15 July 2009, he made a torture claim, which was processed as a non-refoulement claim upon the implementation of the Unified Screening Mechanism in March 2014. The applicant’s claim is based on fear of being harmed or killed by supporters of a political party (ADMK) because he belonged to a rival party (DMK) which was involved in an election conflict with ADMK. The details of the applicant’s claim were set out in the Director’s decision at [7]. We will not repeat them.

6.  By two decisions dated 13 May 2015 and 7 June 2017, the Director rejected the applicant’s claim. The first decision covered the torture risk[1], BOR 3 risk[2] and persecution risk[3] grounds while the further decision related to the BOR 2 risk[4] ground.

7.  The applicant’s appeal to the Board was heard at an oral hearing held on 5 December 2017. By its decision dated 24 May 2018, the Board dismissed the appeal. The Board had doubts about the credibility of the claim and did not accept the facts underlying the claim. The Board also found that, even if the applicant’s case was to be accepted, it did not meet the requirements of the applicable grounds. The Board further found state protection and internal relocation alternatives were reasonably available. The Board concluded that the applicant failed to establish entitlement to non-refoulement protection under any of the applicable grounds.

8.  On 6 June 2018, the applicant filed a Form 86 together with an affirmation to apply for leave to judicially review the Board’s decision of 24 May 2018. In either the Form 86 or the supporting affirmation, the applicant did not provide any ground for seeking relief.

9.  The Judge dealt with the application on the papers. By a Form CALL-1 dated 14 April 2021[5], the Judge refused the application for leave to apply for judicial review. The Judge considered the intended judicial review had no reasonable prospect of success, as there was no reasonably arguable basis to challenge the Board’s finding, and there was no error of law or procedural unfairness in the Board’s decision.

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 order refusing leave within 14 days after such refusal. The 14-day period for the applicant to appeal the Judge’s order expired on 28 April 2021.

11.  By a summons filed on 4 May 2021 together with a supporting affirmation, the applicant applied for an extension of time to appeal the Judge’s decision. The Judge heard the application at an oral hearing on 27 July 2021. By his decision handed down on 5 August 2021[6], he dismissed the application.

12.  On 20 October 2021, the applicant filed the present summons together with an affirmation to make a further application to this Court for extension of time to appeal.

13.  In deciding whether to extend time for appealing against the Judge’s decision refusing him leave to apply for judicial review, the court has to consider: (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.

14.  The applicant was 6 days late when he filed the 4 May 2021 summons. The delay is not substantial. Like the Judge, we would focus on the merits of the intended appeal.

15.  In considering the merits of the intended appeal, 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].

16.  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 Board afresh as if it is a fresh application for judicial review.

17.  In the present application, the applicant did not provide any ground in support of his intended appeal in either the summons or the affirmation.

18.  The written submission quoted extensively from [43] to [45], and [51] of the judgment in Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289 and referred to decisions on Wednesbury unreasonableness and also section 37ZT of the Immigration Ordinance which concerns the late filing of notice of appeal to the Board. It submitted that: (1) the high standard of fairness should apply because the decision has the effect of finally disposing of the applicant’s claim; (2) the Board acted in a procedurally unfair manner in dealing with the applicant’s case and did not properly assess his credibility.

19.  In our view, the matters put forward in the written submission did not contain arguable grounds of appeal against the Judge’s decision. Firstly, it was not shown how the legal propositions quoted in the written submission relate to the applicant’s case. The reference to section 37ZT of the Immigration Ordinance is irrelevant since the applicant was not late in his appeal to the Board. Secondly, the complaint about the Board being unfair in assessing the applicant’s credibility is a new argument. It also lacks particulars and is no more than a bare assertion.

20.  We have in any event examined the Board’s decision. We agree with the Judge that there is no reasonably arguable basis for challenging its finding and the reasons do not show any error of law, irrationality of procedural irregularity.

21.  As the applicant’s intended appeal against the Judge’s refusal of leave to apply for judicial review has no prospect of success, it would be futile to extend the time to appeal. Accordingly, we dismiss the summons filed on 20 October 2021.