SUBRAMANIAN SUDHAGAR v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

CAMP 70/2021

[2021] HKCA 1560

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 70 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 1854 OF 2018)

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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 29 November 2018, Yau J 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 his non‑refoulement protection claim^[1].

2.  On 23 February 2021, the judge refused to grant extension of time to appeal against his decision as the delay is not justifiable and the applicant failed to show that he had any prospect of success in his intended appeal^[2].

3.  On 8 March 2021, the applicant filed the present summons seeking to set aside the order dated 23 February 2021.  This application should be treated as a renewed application for leave to appeal out of time against the judge's decision of 29 November 2018, see Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at §§3 to 8.

4.  The applicant is a national of India.  He is 42 years old.  He came to Hong Kong on 31 January 2007 as a visitor and subsequently overstayed.  He was arrested by the police on 3 December 2007.  He raised a torture claim on 16 December 2007 on the basis that he will be harmed or killed by his creditor if he returns to India.  His torture claim was later treated as a non-refoulement claim under the unified screening mechanism.

5.  By a Notice of Decision dated 24 November 2014 (“Director’s first decision”), the Director rejected the applicant’s claim on torture risk^[3], BOR 3 risk^[4] and persecution risk^[5]. 

6.  The applicant appealed against the Director’s first decision to the Board.  The Board conducted a hearing on 10 July 2015. The Board found that the applicant had never sustained any severe pain or suffering.  The Board held that the applicant failed to show any foreseeable, real and personal risk, persecution risk or any grounds for the existence of real risk of torture.  The Board also considered that the alleged problem has nothing to do with race, religion, nationality, membership of a particular social group or political opinion.  The Board further assessed that the applicant can safely relocate to other parts of India.  Therefore, the Board concluded that the applicant has not made out a case and dismissed the appeal on 10 May 2016 (“the Board’s first decision”).

The first leave application – HCAL 107/2016

7.  On 7 June 2016, the applicant applied for leave to apply for judicial review against the Director’s first decision and the Board’s first decision under HCAL 107/2016.  The application was refused by Yau J on 26 May 2017.  The judge found that the intended judicial review has no realistic prospect of success as the claim had been carefully analysed and considered by the Director and the Board with no error of law or procedural unfairness.  

8.  By a Notice of Further Decision dated 25 January 2017, the Director rejected the applicant’s claim on BOR 2 risk^[6] in the absence of response from him to the invitation to submit additional facts which may be relevant to his non-refoulement claim (“Director’s second decision”).  

9.  The applicant appealed against the Director’s 2^nd decision to the Board.  The Board decided that it was not necessary to hold a hearing and dealt with the appeal on paper.  The Board considered there is no evidence to show that the applicant will be at risk of harm from capital punishment inflicted by the government of India or face harm from the Indian government that would place his life at risk.  The Board also held that the applicant failed to show there was a real risk that the ill-treatment he would face if refouled would attain the requisite minimum level of severity.  Thus, the Board dismissed the appeal on 2 August 2018 (“the Board’s second decision”).

The second leave application – HCAL 1854/2018

10.  On 6 September 2018, the applicant filed a Form 86 and an affirmation to apply for leave for judicial review of the Board’s 2^nd decision under HCAL 1854/2018 on the following grounds:

(1)  Procedural impropriety for failure to conduct sufficient inquiry into the relevant country of origin conditions;

(2)  Procedural impropriety or irrationality for failure to conduct oral hearing for his BOR 2 claim and failure to provide him with sufficient opportunities to present his claim;

(3)  Error or misdirection in law for failing to take into account the considerations of psychological strain and threats to him personally or threats to him directly to kill him;

(4)  No sufficient basis to conclude that the applicant would not be at risk of being subjected to any kind of risk to life upon refoulement.

The decision made by Yau J in HCAL 1854/2018

11.  A hearing was conducted before Yau J on 29 November 2018.  The applicant had nothing to say at the hearing.  The judge considered that it was not open to the applicant to apply for leave to seek judicial review for the second time on the same subject matter and dismissed the second leave application at the hearing.  A written decision was delivered on 13 March 2019.

12.  On 28 August 2020, the applicant sought an extension of time to appeal against the decision of 29 November 2018.  The application was heard by Yau J on 7 October 2020 and was refused on 23 February 2021.

Grounds of appeal

13.  The applicant stated his grounds of appeal in his written submissions which may be summarized as follows:

(1)  It is unfair that the judge never heard him in person (Ground 1);

(2)  There was lack of legal representation for BOR 2 assessment.  The Director considered his BOR 2 claim without referring his case to the Duty Lawyer (Ground 2);

(3)  He was not provided with sufficient language assistance (Ground 3);

(4)  The Director’s 2^nd decision was determined by the Director without ensuring that the applicant was aware of his rights and the definitions of BOR 2 risk (Ground 4).

Analysis and disposition

14.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court 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.

15.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court (Cap 4A), the applicant may appeal to the Court of Appeal against the judge’s order refusing leave within 14 days after such refusal.  The judge’s order was made on 29 November 2018.  The applicant took out a summons in the court below on 28 August 2020.  He was late for more than 17 months exclusive of the court’s summer vacation in August.  The delay is very substantial. 

16.  The applicant explained that he does not know English, had no money to obtain proper help regarding the procedure of appeal and only came to know that he could appeal against the second decision after asking around.  By that time, the time for appeal has already expired. 

17.  The applicant has applied for leave to seek judicial review two times and all the documents he previously filed with the court were written in English.  This shows that either the applicant is conversant with the English language or he has access to language assistance if needed.  It is unreasonable for the applicant to take such an excessively long time to figure out what to do with the dismissal of his leave application. Under these circumstances, his explanation is not acceptable and cannot justify the substantial delay. 

18.  As the applicant’s delay was substantial and inexcusable, he must show a real prospect of success on the merits, see Secretary for Justice v Hong Kong Yaumatei Ferry Co Ltd [2001] 1 HKC 125.

19.  In assessing the merit of the intended appeal, the court 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.

20.  In determining an appeal, the Court of Appeal focuses on the decision of the judge and would only reverse that decision if it can be demonstrated 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. 

21.  Ground 1 is bound to fail as the applicant had attended the hearing before the judge on 29 November 2018 and was given the opportunity to present his case but he declined to make oral submissions at the hearing.

22.  Ground 3 is also without merit as interpreter services were provided at hearings at every stage and at the time when the applicant was assisted by the Duty Lawyer.  The high standard of fairness required by law would not entail interpretation service being made available to an applicant at any time as he may desire, see Re Gurung Sagar [2019] HKCA 658 at §12. 

23.  For the grounds pertaining to the assessment of BOR 2 risk, the judge was wrong in determining that it was not open for the applicant to take out the leave application for the second time.  In reaching this decision, the judge mistakenly treated the leave application as one against the Director’s first decision and the Board’s first decision whereas the applicant was actually applying for leave to seek judicial review against the Board’s second decision. 

24.  There is some basis for arguing that the judge has not properly considered the applicant’s second leave application and his grounds pertaining to his claim under BOR 2.  In particular, the judge did not mention the Director’s second decision and the Board’s second decision at all in his decision although these decisions were mentioned in the applicant’s supporting affirmation and copies of the same had been produced in the exhibit to the affirmation.

25.  On this basis alone, there is a real prospect of success in his intended appeal against the judge’s decision of 29 November 2018 and it would be appropriate to grant the applicant an extension of time to appeal.

26.  We therefore grant leave to the applicant to appeal against the judge’s decision of 29 November 2018 out of time.  We direct him to file a Notice of Appeal within 28 days of this judgment setting out his grounds of appeal on the basis as indicated above.