RE KHADKA MANOJ

CACV 258/2018

[2018] HKCA 620

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 258 OF 2018

(ON APPEAL FROM HCAL 550/2017)

_____________________________

_____________________________

________________

J U D G M E N T

________________

Hon Lam VP (giving the Judgment of the Court):

1.  This is an appeal from the decision of Deputy High Court Judge Woodcock dated 11 June 2018 refusing leave to the applicant to apply for judicial review.

Background

2.  The applicant is a national of Nepal.  He arrived in Hong Kong on 27 June 2013 with a permission to remain as a visitor until 2 July 2013.  He did not depart upon the expiry of his permission to remain, and overstayed illegally.  He was arrested by the police on 26 October 2013.  He lodged his claim for non-refoulement protection on 28 October 2013.

3.  By two notices of decision dated 29 July 2015 and 17 November 2016, the Director of Immigration rejected his non-refoulement claim.  The former decision covered the BOR 3 risk[1], the persecution risk[2], and the torture risk[3]; and the latter the BOR 2 risk[4]. 

4.  The applicant appealed to the Torture Claims Appeal Board.  His appeal was dismissed by the Board on 10 April 2017. The facts and case advanced by the applicant are set out at paras 10 to 32 of the decision of 10 April 2017 of the Appeal Board.

The judge’s decision

5.  The applicant filed his Form 86 on 22 August 2017.  The intended application for judicial review was against the Board’s decision.  In the Form 86, the applicant relied on the following grounds for seeking relief:

(a)   Since the hearing bundle and the director’s skeleton argument for the hearing before the board were only delivered to the applicant 6 days before the hearing, and since most of the documents in the bundle and the skeleton argument were written in English, the applicant had insufficient time to prepare for the hearing, rendering the process unfair;

(b)   There is common law duty of maintaining minimum standards of procedural fairness in the decision making process; and

(c)   The board failed to take into account the fact that the applicant was not legally represented.

6.  He also sought an extension of time, which was required because his application was made outside the 3-month time limit prescribed in Order 53 Rule 4. In his affirmation of 16 August 2017, after setting out his grounds for seeking relief, the applicant also deposed the following:

“ … I crave leave for extension of time to apply judicial review considering it has been more than 3 months since the decision by Torture Claims Appeal Board was handed down. On 2^nd May 2017, I applied for Legal Aid to pursue for Judicial Review and my legal aid application was being processed under the reference of LA/MJR/16499/2017(CG09). On 29^th June 2017, my application for Legal Aid was refused. In July 2017, I asked my welfare officer in CIC to assist me in appealing against the refusal of my legal aid application but in vain.”

7.  The judge scheduled an oral hearing for 26 January 2018.  Despite notice of hearing being given to the applicant by post to his address, the applicant failed to attend the hearing. The judge proceeded with the application in his absence.  The judge refused to grant an extension of time for the applicant to bring the judicial review.  The judge’s reasons for refusing to grant an extension of time were set out in [4] to [6] of the CALL-1 form as follows:

“4. The applicant had failed to file his Form 86 in a timely manner within three months of the date of the adjudicator’s decision (Order 53 Rule 4). This application is just under six weeks late. His notice of application does acknowledge the delay and requests an extension of time to apply for judicial review. He gives an explanation in his application and it is repeated in his supporting affirmation.

5. The explanation appears to be that he applied for legal aid on 2 May 2017 but it was rejected on 29 June 2017. In July 2017 the applicant says he asked his welfare officer inside Castle Peak detention centre (whilst he was detained) to assist him in appealing against the refusal of his legal aid application. This request was refused. This does not explain why his Form 86 is late nor does it explain why he did not file his Form 86 at the same time as he made his legal aid application or even after it was refused. The applicant admits that he was aware he could make an application for leave to apply for judicial review and that was the reason he applied for legal aid.

6. In short, his explanation is unsatisfactory and the delay in filing this application is not insignificant.  I see no reasonable explanation for the delay.  In any event, the merits of the substantive application, after perusal of the papers are, in my view, weak.  Moreover, the application does not raise any questions of general importance.  Delay alone is enough to dispose of this application and I refuse leave to apply for judicial review.”

8.  Notwithstanding that, the judge also considered the merits of the applicant’s grounds for seeking reliefs as contained in the Form 86.  The judge found that she would refuse to grant leave to apply for judicial review in any event.  Her reasons for coming to such view were set out in [7] to [9] of the CALL-1 form as follows:

“7. Despite my refusal to consider his application on the grounds of delay, I did consider the applicant’s affirmation and found no substance in the grounds of this application. The adjudicator’s decision was without fault; she considered and analysed his evidence and claim carefully. It would appear that she accepted his evidence but found that even on his own facts, he was unable to invoke the protection of BOR 2 or BOR 3, unable to show he was at risk of torture and could not prove a persecution risk for the purpose of a non-refoulement protection claim.

8. The adjudicator correctly applied the law and key legal principles to the four grounds open to the applicant. She carefully considered Country of Origin information, the availability of State protection as well as the option of internal relocation. The adjudicator confirmed the decisions of the Director.

9. The applicant’s grounds were weak and without substance or merit.  Even if there had been no delay and an extension of time had been granted, the applicant’s claim is not reasonably arguable.  There is no realistic prospect of success. There was no error of law by the adjudicator nor any evidence of procedural unfairness nor a failure to adhere to a high standard of fairness.  The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable.  I would have refused leave to apply for judicial review.”

The appeal

9.  The applicant filed a notice of appeal on 22 June 2018.  The ground of appeal as stated in the notice of appeal is as follows:

“ The Learned Judge failed to consider properly or at all matters of delay.”

10.  The applicant lodged his skeleton submission on 23 August 2018.  The applicant stated in the skeleton submission that he disagreed with [8] of the CALL-1 form on the following grounds:

(a)   There were contradictions concerning the state condition in the Board’s decision;

(b)   There was insufficient consideration on the issue of state protection;

(c)   The Maoist forces were still active after the civil war and the applicant could have no state protection at the present stage. 

11.  We heard the appeal on 13 September 2018.

Discussion

12.  In respect of judicial review applications brought outside the three-month time limit where the judge refused to extend time, an applicant must appeal that refusal to extend time and to do so he should obtain leave under section 14AA(1) of the High Court Ordinance (Cap 4) before an appeal can be brought: see Kwok Cheuk Kin v Leung Chun Ying [2018] HKCA 419. 

13.  Although no proper application for leave to appeal has been filed, we shall treat the applicant as seeking leave under section 14AA(1). 

14.  Section 14AA(4) provides that no leave should be granted unless the court is satisfied that the appeal has a reasonable prospect of success or there is some other reason in the interests of justice that the intended appeal should be heard.

15.  In the present case, the judge had given due regard to the applicant’s explanation for delay.  There is no basis for us to accept that the judge failed to consider the question of delay properly or at all. In our view, the judge was entitled to find that the pending legal aid appeal is not a reasonable excuse for not bringing the application for leave to apply for judicial review within the statutory time limit.

16.  Further, the crucial consideration in this type of application is whether the applicant can show that there is a reasonable prospect of success in the intended judicial review, see Re Gurung Min Bahadur [2018] HKCA 226.

17.  In our view, the judge was justified in concluding that the intended application for judicial review lacked merits.

18.  The grounds set out in the applicant’s skeleton argument on state protection (which had not been advanced in the court below or in the notice of appeal), were bare assertions without any particulars or evidence in support.  There is no evidential basis for the court to interfere with the Board’s decision by way of judicial review. Further, the applicant did not advance any basis to challenge the Board’s finding that the risk of harm was not substantial as reasoned at paras 79 to 99 of its decision. 

19.  As the applicant failed to demonstrate a viable basis to challenge the Board’s decision on public law grounds, any application for leave to apply for judicial review against the Board’s decision is bound to fail.

20.  There is no reasonable prospect of success in the appeal and we do not see any reason in the interests of justice for leave to be granted. For these reasons, we refuse to grant leave under section 14AA(1) to the applicant to appeal against the decision of the judge refusing to extend time to the applicant to enable him to apply for leave to apply for judicial review.

21.  In the absence of leave being granted to the applicant under section 14AA(1), the appeal should be struck out and we dismiss the same accordingly.