RE RAM KRISHNA GURUNG

CAMP 483/2021

[2022] HKCA 292

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 483 OF 2021

(ON AN INTENDED APPEAL FROM HCAL 990/2018)

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J U D G M E N T

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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 CP Pang (“the Judge”)  dated 22 October 2020 refusing to grant extension of time and to give 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 22 December 2017 (“the Board’s Decision”), dismissing the appeal against the decision of the Director of Immigration (“the Director”)  dated 24 October 2016 rejecting the applicant’s non-refoulement claim (“the Director’s Decision”).

Background

2.  The applicant is a national of Nepal.  He first entered Hong Kong as a visitor in 1997, and was the subject of a dependent visa for some years.  On 22 April 2016, a deportation order was issued against him by the Immigration Department.  On 15 June 2016, the applicant applied for non-refoulement protection.

3.  The applicant’s claim was based on a fear of being harmed or killed by members of an opposing political party.  The details of the applicant’s claim have been summarised by the Judge at [2] and [3] of his decision (“the CALL-1 Form”)[1].

4.  By a Notice of Decision dated 24 October 2016, the Director decided against the applicant’s non-refoulement claim.  The Director’s Decision covered the torture risk[2], the persecution risk[3], the BOR 2 risk[4] and the BOR 3 risk[5].

5.  The applicant appealed to the Board.  After a hearing on 5 December 2017, the Board dismissed the appeal on 22 December 2017.  The Board’s Decision covered all grounds for non-refoulement protection.  The Board concluded that the applicant had failed to establish a genuine and substantial risk of harm should he be refouled, and in any event such risk, even if one existed, could be addressed by internal relocation.  

The Judge’s decision

6.  The applicant filed a Form 86 on 1 June 2018, out of time, seeking to judicially review the Board’s Decision without setting out any grounds of review.  In his supporting affirmation, he stated that the Board and the Director had failed to consider the reasons and matters raised in his claim, and that they did not mention “the most significant factor” in his claim, without giving any particulars.

7.  After summarizing the facts and background of the case and giving due consideration to the Board’s and the Director’s Decisions, the Judge refused to grant extension of time and refused to give leave for judicial review.  The Judge gave the following reasons in refusing extension of time and leave to apply for judicial review (as well as an extension of time)  at [11] to [23] of the CALL-1 Form:

“11.  The relevant principles regarding non-refoulement cases have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at paragraph 14. In particular, the role of the court in a judicial review is not to provide a further avenue of appeal. The primary decision makers are the Director and the Board. While the court in non-refoulement cases will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board.  Assessment of evidence, country of origin information, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director. The court will not intervene by way of judicial review unless there are errors of law, procedural unfairness or irrationality in the decision of the Board.

12.  When the applicant pursued the appeal to the Board, the Director’s decision was superseded by the Board’s decision and is no longer susceptible to judicial review: Re Moshsin Ali [2018] HKCA 549. Therefore, while the court needs to examine the decisions of the Director and the Board with rigorous examination and anxious scrutiny, it is unnecessary to delve into the decision of the Director.  This Observations for the Applicant will only focus on discussing the latter’s decision.

Application out of time

13.  The applicant’s intended application for judicial review was made out of time.  Order 53, rule 4(1)  of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.  In considering whether to extend time, the court will have regard to (i)  the length of the delay; (ii)  the reason for the delay; (iii)  the merits of the intended application; and (iv)  any prejudice to the putative respondent and to public administration: Re Thomas Lai [2014] 6 HKC 1; AW v Director of Immigration [2016] 2 HKC 393.

14.  The principles have been further explained in the recent case of H v Director of Immigration and AH v Director of Immigration FACV 1 and 2 of 2020, at para 7.

15.  In this case, the 3-month time limit ended on 22 March 2018 and the application was more than 2 months late. It was quite a substantial delay.  The applicants explained in Form 86 that he did not get the decision of the Board, probably it was lost because his letter box was also used by other people. The bare assertion is not supported by details or reasons in support. He did not state when and how he came to know the Board’s decision. In any event, it is the duty of litigants to give to the court a correct and proper address for document to be received and collected so that correspondence or notice from the court can come to their attention in a timely manner. The consequence of any delay or failure occasioned by the ineffectiveness of such an address would fall on the shoulder of the litigant (Re Hasmi Rizwan Imran [2018] HKCA 439 at para [15]). I do not find his explanation acceptable as a valid reason for the delay.

Merits of the intended application

16.  As for the merits of the intended application, far from a case with realistic prospect of success, I am of the view that the applicant has no prospect of success at all.

17.  In the present case, the Board only accept that the applicant might have been attacked on one occasion when he was with Dinesh.  It did not accept that he had been harassed by people of the two political parties or that the Nepali police put up a false case against him. On the factual findings, there would be no factual basis in support of any of the applicable grounds.  Further and in any event, the Board found that internal relocation is a reasonable option for him.

18.  As explained above, the assessments of evidence, risk of harm, and viability of internal relocation are primarily within the province of the Board and the Director.  This court will not interfere with their decisions unless there is a public law ground for the court to do so.

19.  The grounds/ complaints raised by the applicant in his Form 86 and affirmation are general and vague assertions, without particulars to demonstrate why the Board was unfair or unreasonable in the public law sense.  In the absence of any error of law or procedural unfairness being shown by the applicant, I do not find any reasonably arguable basis to challenge the findings of the Board.

20.  The Board engaged in a joint endeavour with the applicant and considered all relevant criteria.  It gave the applicant a reasonable opportunity to state his case and enquired into the issues appropriately.

21.  Even on his own evidence, the applicant was not interested and involved in the politics in Nepal.  He had not resided in Nepal since 2000 and was only back for holiday in July 2013.  Dinesh was his friend and they were both attacked in the alleged incident in 2013.  I agree with the Board that there were no proper reasons for his beliefs that UCPN-Maoist mistakenly thought that he was a supporter of CPN-UML, or the police was trying to put up a false charge of murdering Dinesh against him as he was also a victim in the attack.  His claimed fears had no proper basis in support at all.  There cannot be any criticism of the Board’s determination which is eminently reasonable.

22.  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, irrational findings, or procedural unfairness in either of them.  Nor do I see any failure on their part to apply high standards of fairness in their decisions.

Disposition

23.  For the reasons given, there is no realistic prospect of success in the applicant’s intended application. There is no good reason for extending the time to make the application.  Accordingly, I refuse to grant extension of time and refuse to give leave to apply for judicial review.”

The present application for extension of time to appeal

8.  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 of the Judge’s decision dated 22 October 2020.

9.  The applicant took out a summons in the Court of First Instance on 6 September 2021 seeking an extension of time to appeal against the Judge’s decision.  In his supporting affirmation filed on the same date, he stated that he was detained by the Immigration Department and he had not received the Judge’s decision.  He also complained that the Judge’s decision was unfair, and that he was not allowed an opportunity to clarify his case.  He added that since he was unrepresented, he was unaware of the rules regarding the time limit for appeals.

10.  The applicant’s application to appeal out of time was dismissed by DHCJ KW Lung on 27 September 2021[6].

11.  By a summons filed on 25 October 2021, the applicant renewed his application for an extension of time to appeal before this court.  In his supporting affirmation, the applicant repeated the matters stated in his affirmation in support of the summons filed on 6 September 2021. He claimed that he was unaware of the “14-days’ time limit”.

12.  In breach of the directions made by the Registrar of Civil Appeals, which required him to lodge written submissions on or before 8 November 2021, the applicant only lodged his written submissions (dated 23 November 2021)  late, on 25 November 2021, despite having been forewarned that in the event of failure to adhere to the deadline imposed, he would be deemed to have abandoned his right to rely on written submissions. 

Discussion

13.  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.

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.  See Jagg Singh [2020] HKCA 844 at [10].

15.  The applicant’s precise periods of detention by the Immigration Department are far from certain.  He has never set out these dates or periods to this court or the court below.  The applicant has not explained how and when he had come to know of the Judge’s decision.  

16.  According to the record of the court, the decision of the Judge was sent to the last known address of the applicant on 22 October 2020, and there was no return of mail.  The inference to be drawn is that he has received that letter from the court, and he has had knowledge of the Judge’s decision within the period he was permitted to lodge the intended appeal.

17.  Further, ignorance of legal procedure or rules is not an excuse or justification for not complying with the same.

18.  In the circumstances, the very substantial delay in seeking to appeal has not been explained, and we reject the applicant’s reason for his delay in lodging his intended appeal.

19.  We have nonetheless proceeded to consider the merits of the intended appeal.

20.  The applicant did not in the Form 86 or the accompanying affirmation identify with any particularity, any error of law, procedural unfairness or irrationality in the Board’s Decision. The applicant has not condescended to any particulars as to on what basis the Board’s Decision could be said to be wrong, unfair or Wednesbury unreasonable.  That being the case, the application for leave for judicial review was hopeless and rightly dismissed by the Judge. 

21.  The applicant has failed to identify any arguable error of law by the Judge, any relevant matter that he had failed to consider or any other reason why the refusal of leave was wrong.  Nor can we discern any such matters.

22.  Regarding the applicant’s complaint that he did not have the benefit of legal representation and thus was unaware of the rules applicable to lodging appeals, it is well-established that the high standards of fairness applicable do not require that a non-refoulement protection claimant be absolutely entitled to legal representation at all stages of the screening process or the legal proceedings ensuing therefrom.  See 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 Ahmed Syed Rafiq [2018] HKCA 178.

23.  Given the applicant’s detention by the Immigration Department, and the possibility that his delay in lodging written submissions may have been caused by this, we have, notwithstanding the applicant’s breach of this court’s directions, given consideration to his written submissions dated 25 November 2021.

24.  In his written submissions, the applicant referred to Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, R v Home Secretary, ex parte Doody [1994] 1 AC 531 and R v Home Secretary, ex parte Bugdaycay [1987] 1 AC 514 for the trite propositions (1)  that high standards of fairness are required in the adjudication of non-refoulement claims (and the rationale for such requirement); (2)  that the courts will on judicial review subject such adjudication to rigorous examination and anxious scrutiny to ensure that high standards of fairness have been met; and (3)  that the necessary high standards of fairness require the claimant to be given every reasonable opportunity to establish his claim.  However, there was no attempt by the applicant to explain, how these trite principles had been contravened in the processing of his non-refoulement claim.

25.  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, and the summons filed on 25 October 2021 is accordingly dismissed.