RE AMRIT BAHADUR MAGAR

CAMP 158/2023, [2026] HKCA 1190

On appeal from [2022] HKCFI 2960

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 158 OF 2023

(ON AN INTENDED APPEAL FROM HCAL 1070/2019)

---------------------------------------

---------------------------------------

___________________

J U D G M E N T

___________________

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 (“the Judge”) dated 14 December 2022[1] (“the Leave Decision”) 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 1 April 2019 (“the Board’s Decision”) dismissing the appeal against the decision of the Director of Immigration dated 10 January 2017 rejecting the applicant’s non‑refoulement claim.

2.  The applicant’s background, the basis of his claim and the Board’s reasons in reaching the Board’s Decision have been set out therein and summarised by the Judge in the Leave Decision at [4]-[11], which will not be repeated.  

3.  After considering the documents filed by the applicant and the oral submissions he made at the hearing of the leave application, the Judge dismissed the application for the reasons stated at [14]-[24] of the Leave Decision.  

4.  By a decision dated 13 April 2023[2] (“the EoT Decision”), the Judge refused to extend time for the applicant to appeal against the Leave Decision.   

The present application for extension of time to appeal

5.  According to the court’s record, a copy of the Leave Decision and a sealed copy of the Judge’s order was sent by post to the applicant at his last known address on 14 December 2022, which was not returned undelivered.

6.  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 from the date of the Leave Decision.

7.  Subsequently, the applicant made an application in the court below for an extension of time to appeal against the Leave Decision, which was dismissed by the Judge for the reasons stated in the EoT Decision.

8.  By a Summons filed on 17 April 2023, the applicant renewed his application for an extension of time to appeal before this court. 

9.  In the Summons and his supporting affirmation, the applicant contended that he did not receive “the High Court letter” in time and that he disagreed with the Leave Decision. 

10.  In his written submissions lodged on 2 May 2023, the applicant repeated the background to his claim, emphasised his fears of returning to Nepal, and contended, inter alia, that the Board did not “think about real fact” and “did not give [him] time”.

11.  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

12.  The court’s letter enclosing a copy of the Leave Decision was sent to the last known address of the applicant, and was not returned undelivered.  The applicant is therefore deemed to have had knowledge of the contents of the Leave Decision within the period which he was permitted to lodge an appeal.  In any event, it was incumbent upon the applicant to notify the court of a change of address, if any, as soon as possible, and the consequences of failure to do so must lie with him.  The applicant has also wholly failed to explain how and when he had come to learn of the contents of the Leave Decision. 

13.  We are therefore of the view that the applicant has failed to proffer any or any reasonable explanation for the delay in lodging his intended appeal.

14.  We will also proceed to consider the merits of the intended appeal.

15.  As this court has often stated, an appeal to the Court of Appeal is not a fresh application for judicial review.  It is necessary to identify some error on the part of the judge that would justify this court in intervening: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.  An appeal is not the occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but were not raised before the judge.  In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and the court will only reverse that decision if an appellant could demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

16.  The applicant has failed to identify any error on the part of the Judge and thus failed to raise any viable ground of appeal. The points advanced by the applicant were bare assertions unsupported by particulars or evidence.  In any event, general assertions of fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6].  

17.  In the present case, affording the benefit of the doubt to the applicant on the evidence, the Board found there to be a small but real risk of ill-treatment to the applicant at the hands of the Maoists.  However, the Board found that such risk could be mitigated by seeking state protection or by relocating internally in Nepal (both avenues of recourse being available to the applicant).  These were findings open to the Board on the evidence, and were sufficiently canvassed and considered by the Judge in the Leave Decision at [8]-[24].  We see no basis to interfere.  

18.  Accordingly, the applicant has failed to demonstrate how the Board had acted unlawfully or procedurally unfairly in reaching its Decision, or how such Decision could be said to be Wednesbury unreasonable.

19.  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 17 April 2023 is accordingly dismissed.