RE NAMGEL LAMA

CAMP 293/2021

[2021] HKCA 1848

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 293 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 1346 OF 2021)

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J U D G M E N T

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Hon Au JA (giving the Judgment of the Court):

1.  This is a renewed application for extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan (“the Deputy Judge”) dated 15 January 2020 refusing to grant the applicant leave to apply for judicial review (“the Leave Decision”) ([2020] HKCFI 123). An earlier application for extension of time to appeal was refused by the Deputy Judge on 25 May 2021 (“the 2^nd EOT Decision”) ([2021] HKCFI 1417).

2.  The intended judicial review was directed at the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”) dated 25 June 2018 (“the Board’s Decision”), dismissing the applicant’s appeal against the decisions of the Director of Immigration (“the Director”) dated 19 June 2015 and 12 June 2017 rejecting his claim for non-refoulement protection (collectively “the Director’s Decisions”).

3.  Having considered the paper, we are of the view that it is appropriate to determine this application without a hearing under Order 59, rule 14A of the Rules of the High Court, Cap 4A (“the RHC”).

Background

4.  The applicant is a national of Nepal.  He entered Hong Kong on 6 July 2013 with permission to remain as a visitor up to 11 July 2013 when he did not depart and overstayed.  He was arrested by the police on 16 July 2013 and referred to the Immigration Department.  He subsequently raised a non-refoulement claim by way of written representation dated 11 September 2013 on the basis if he returned to Nepal, he would be harmed or killed by certain supporters of the political party Young Communist League (“YCL”) for refusing to join their party or to make donation to them.  Details of the applicant’s claim were summarised by the Deputy Judge at [2] ‑ [7] of the Leave Decision.

5.  By a Notice of Decision dated 19 June 2015, the Director rejected the applicant’s non-refoulement claim on all applicable grounds including torture risk^[1], BOR3 risk^[2], and persecution risk^[3].  By a Notice of Further Decision dated 12 June 2017, the Director rejected the applicant’s claim based on BOR2 risk[4].

6.  The applicant appealed to the Board on 2 July 2015 and the Board heard his appeal against the Director’s Decisions on 16 March 2018 where he gave evidence.  The Board dismissed his appeal on 25 June 2018 and confirmed the Director’s Decisions.  The Board did not accept that the YCL supporters would have any adverse interest in the applicant after all these years and that reasonable internal relocation would be available to the applicant if he returned to Nepal.  Accordingly, the applicant failed to substantiate his case and the Board dismissed his appeal.

The Leave Decision

7.  On 10 July 2018, the applicant filed a Form 86 for leave to apply for judicial review against the Board’s Decision.  He failed to attend the oral hearing on 3 October 2019.

8.  By the Leave Decision, the Deputy Judge dismissed his application for leave to apply for judicial review for the following reasons:

“13. On 10 July 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

(1) that the adjudicator dealt with the Applicant’s appeal without a fair hearing and was unrepresented;

(2) that the adjudicator failed to meet the high standard of procedural fairness when he sought to challenge the Applicant’s credibility when a fair oral hearing was warranted with representation in order to satisfy the obligation of procedural fairness;

(3) that the adjudicator took account of irrelevant considerations in assessing the Applicant’s claim rendering a refusal decision;

(4) that the adjudicator failed to give proper reasons for his decision in rejecting the Applicant’s claim;

(5) that the adjudicator failed to take account of all the COI materials before rejecting the Applicant’s claim;

(6) that the adjudicator relied on sources of news not officially recognized or were simply hearsay in assessing internal relocation as a viable option; and

(7) that the adjudicator has done a shoddy job, inconsiderate and failed miserably in assessing his claim.

14. These are however all just broad and vague assertions of the Applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Board or the adjudicator had erred in the decision, or in what way did the adjudicator fail to take into account relevant COI or being selective or improperly rely on irrelevant COI, or what irrelevant consideration that the adjudicator had taken in assessing his claim. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, while his complaint of no oral hearing being provided for his appeal is clearly factually incorrect, as he did attend an oral hearing on 16 March 2018 before the Board during which he gave evidence and answered questions raised of his claim with the assistance of an interpreter. As such I do not find any of these grounds reasonably arguable for his intended application.

15. As for his complaint of not being provided with legal representation for his appeal before the Board, the Court of Appeal has already held that neither the high standards of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51/2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14; Re Zahid Abbas [2018] HKCA 15; Re Tariq Farhan [2018] HKCA 17; Re Lopchan Subash [2018] HKCA 37; and Re Zafar Muazam [2018] HKCA 176.

16. The Applicant already had the benefit of legal representation in presenting his case to the director, and was as noted above able to testify and make representation in his appeal hearing before the Board and to answer questions put to him by the adjudicator without difficulty. In the premises I do not find anything amiss arising from the lack of legal representation in his appeal process before the Board, and I do not find this ground reasonably arguable for his intended challenge either.

17. As has been repeatedly emphasized by the Court of Appeal, the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

18. The fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Nepal, there is simply no justification to afford him with non‑refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526.

19. In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

20. For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse his leave application.”

The 1^st EOT Decision

9.  Under Order 53, rule 3(4) of the RHC, the applicant may appeal against the Deputy Judge’s order to the Court of Appeal within 14 days of the order.  No notice of appeal was filed by the applicant within the 14-day period.

10.  On 8 June 2020, the applicant filed a summons for extension of time to appeal against the Leave Decision (“the 1^st EOT Summons”).  By then he was over four months late with his intended appeal.

11.  At the hearing of the 1^st EOT Summons held on 26 August 2020, the applicant contended that he received the Leave Decision late and was unable to file his appeal due to the general adjournment of legal proceedings (“GAP”) at the time as a result of the COVID-19 pandemic until sometime in June 2020 and he was already out of time by then.  The Deputy Judge considered that the applicant had valid reasons for his delay noting the Chinese New Year holiday and the GAP and allowed the applicant to file his appeal within 14 days of the Deputy Judge’s Order (ie, on or before 30 September 2020).  The applicant however failed to do so.

The 2^nd EOT Decision

12.  On 21 December 2020, the applicant filed a 2^nd summons for extension of time to appeal against the Leave Decision (“2^nd EOT Summons”).  By then, he was almost three months late with his intended appeal.  The applicant failed to attend the oral hearing on 28 April 2021.

13.  By the 2^nd EOT Decision, the Deputy Judge refused to grant further extension of time to appeal to the applicant.  The Deputy Judge considered a delay of almost three months as very substantial.  Although the applicant claimed in his supporting affirmation that he did not receive the Court’s decision and only came to know about it when he received a phone call from his Immigration officer, the applicant did not provide any further details in support of those assertions.  As the applicant did not identify any errors in the Leave Decision and did not put forward any proper or valid draft or proposed grounds of appeal, the Deputy Judge did not see any prospect of success in his intended appeal and refused to grant further extension of time to appeal to the applicant.  Accordingly, the 2^nd EOT Summons was dismissed.

The Present Application

14.  By a summons dated 28 July 2021, the applicant reapplied for extension of time to appeal against the Leave Decision to this Court.  In the summons, he asserted that he did not receive the sealed order, Form CALL-1 and the Judgment within 14 days as the order of the Court was lost in post and he could only get the said documents after searching the Court file.

15.  In the supporting affirmation of the same date, the applicant contended:

“Due to the document being lost in Post, I received the sealed order, CALL-1 and Judgement within 14 days from 15 Jan 2020 and by that time, I had already missed th deadline to appeal within 14 days from the date of the judgement but there is nothing that I could do to prevent the document being lost in post. I could only get those documents after searching court file.” [sic]

16.  The applicant lodged his written submissions on 9 August 2021.  In those submissions, the applicant cited ST v Director of Immigration [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289 for the proposition that high standards of fairness were required in the determination of a torture claim.  He submitted that the Board acted in a procedurally unfair manner without properly assessing his credibility.  He referred to Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 233 and R v Ministry of Defence ex p Smith [1996] QB 517 for the proposition that a decision of an administrative body was liable to be set aside if it was reached unreasonably.  He also referred to section 37ZT of the Immigration Ordinance, Cap 115, which was about the late filing of notice of appeal to the Board.  It is noted that these are all general propositions and the applicant has failed to show specifically how they are relevant to his case.

Discussion

17.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the Court will have regard to: (a) the length of delay; (b) the reasons for the delay; (c) the prospect of success of the intended appeal; and (d) the prejudice to the putative respondent if extension of time was granted: Re Rahman Wasif [2019] HKCA 299 at [13].

18.  We consider the applicant’s delay of almost three months as very substantial and the applicant failed to provide any cogent explanation for the delay.  We agree with the Deputy Judge that although the applicant claimed he did not receive the Court documents as they got lost in the post, he provided no explanation or evidence in support of his assertion.

19.  As such, given that the applicant failed to provide any cogent explanation for his delay, the Court will only grant extension of time if his appeal has a real prospect of success: Re Kanwal Gulnaz [2021] HKCA 636 at [15]; Re Ansar Muhammad [2018] HKCA 227 at [8]; Re MA [2019] HKCA 1020 at [18].

20.  In assessing the merit of an intended appeal, this Court will focus on the decision of the Deputy Judge and will only consider reversing that decision if an applicant can demonstrate that the Deputy Judge made errors of law or failed to take account of relevant matters already placed before the Court or was otherwise plainly wrong: Sakatter Singh v Director of Immigration [2021] HKCA 1490 at [15]. General and bare assertions without any specific particulars are not proper grounds of appeal: Re Farrukh Zaib [2020] HKCA 408 at [28].

21.  Nowhere in the summons, supporting affirmation or written submissions for the present application did the applicant identify any proper grounds of appeal or errors committed by the Judge.  His complaints are general and bare assertions without any specific particulars, elaboration or evidence in support.  They do not constitute viable grounds of appeal.  The intended appeal must fail on this basis alone.

22.  In any event, we have reviewed both the Board’s Decision and the Leave Decision and the reasons the Board and the Deputy Judge gave for their decisions.  We agree with the Deputy Judge that there is no ground warranting any interference with the Board’s Decision by the Court by way of judicial review.

23.  For the above reasons, the intended appeal has no prospect of success.  It will be futile to extend time.  The application for extension of time to appeal is therefore refused and the summons dated 28 July 2021 dismissed.