RE SALINA THAPAMAGAR

CAMP 236/2021

[2021] HKCA 1807

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 236 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 607 OF 2018)

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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.  By a summons dated 30 June 2021, the applicant applied to this Court for leave to appeal against the order made by Deputy High Court Judge Bruno Chan (“the Deputy Judge”)  dated 22 June 2021 refusing the applicant’s application for an extension of time to appeal ([2021] HKCFI 1623)  (“the EOT Decision”)  against the Deputy Judge’s previous order dated 15 December 2020, when the Deputy Judge refused to grant extension of time to the applicant to apply for judicial review and dismissed her application for leave to apply for judicial review ([2020] HKCFI 2600)  (“the Leave Decision”).

2.  The applicant’s intended judicial review was directed at the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”)  dated 24 May 2016 refusing her application for late filing of the Notice of Appeal (“the Board’s Decision”).

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.  She arrived Hong Kong on 16 June 2004 and was permitted to remain as visitor until 23 June 2004.  Since then, she did not depart and overstayed.  On 13 August 2009, she was arrested and referred to the Immigration Department.  She raised a torture claim by written representation dated 21 November 2009 (“Torture Claim”)  on the basis that if she returned to Nepal she would be harmed or killed by her abusive husband and / or her creditor for failing to repay her loan, and / or members of the political party Communist Party of Nepal (“Maoist”)  for refusing to join their party.  Details of the applicant’s claim were summarised by the Deputy Judge at [2] - [3] of the Leave Decision.

5.  Her Torture Claim was rejected by the Director of Immigration (“the Director”)  on 14 June 2013 and her appeal to the Board was dismissed on 21 February 2014.  She later sought non-refoulement protection and completed a Supplementary Claim Form on 30 October 2014.

6.  By a Notice of Decision dated 23 July 2015, the Director rejected the applicant’s non-refoulement claim on all applicable grounds other than torture risk including BOR3 risk[1] and prosecution risk[2].  After considering the evidence, the Director assessed the applicant’s level of risk of harm upon her return to Nepal as low and that state protection and reasonable internal relocation alternatives would be available to her in Nepal (“the Director’s Decision”).

7.  On 10 August 2015, the applicant appealed against the Director’s Decision to the Board.  By then, she was four days late in filing her Notice of Appeal to the Board[3].  Her explanation for the delay was that she did not receive the appeal documents until very recently and she did not have enough money and time to find a lawyer to help her.

8.  By way of the Board’s Decision, the Board refused the late filing of her Notice of Appeal. The Board found no satisfactory explanation for her delay and her Notice of Appeal did not disclose any special circumstances by reason of which it would be unjust not to allow the late filing, and there was no other relevant matter of fact which may justify allowing the late filing of her Notice of Appeal.

9.  By a Notice of Further Decision dated 9 February 2017, the Director rejected the applicant’s non-refoulement claim on all applicable grounds including BOR2 risk[4].

The Leave Decision

10.  On 10 April 2018, the applicant filed her Form 86 for leave to apply for judicial review against the Board’s Decision.  She was late by 19 months in making her application[5].

11.  In her supporting affirmation of the same date, she contended that the decision not to allow her to appeal the Director’s Decision was not fair because she had given a valid reason for not being able to file her appeal on time.  She further contended that the Director failed to assess the ground realities in Nepal before deciding against her case.

12.  Having considered the documents before him, on 15 December 2020, the Deputy Judge refused to extend time for the applicant to apply for leave for judicial review and dismissed the applicant’s application for leave to apply for judicial review for the following reasons:

“13. In the Applicant’s case, a delay of more than 19 months must be considered as extremely substantial and excessive, for which she did not provide any explanation, nor can I find any reason for such serious procedural breach.

14. As for the merits, if any, of her intended application to challenge the Board’s decision, the Applicant as noted above relies on 2 grounds which are essentially that it was unfair and unreasonable for the Board not to allow her to file her late Notice of Appeal despite having given valid reason for her slight delay.

15. Given the fact that an appeal to the Board is treated as a re-hearing of a non-refoulement claim in the second tier of the enhanced screening process of such claim, and in view of the serious implications of the Board’s decision on the Applicant, high standards of fairness require that its reasons for refusing to allow the late filing of her appeal be considered by the court with rigorous scrutiny.

16. The Applicant does not dispute that she was late with her appeal to the Board, for which she explained in her statement of reasons for her late filing in Section 5 of her Notice of Appeal as follows:

‘I did not receive the appeal documents until very recently. I don’t have enough money and time to find a lawyer to help me.’

17. It would also be pertinent to note here that in section 2 of her Notice of Appeal, the Applicant merely repeated her concerns about the Maoists which she earlier made to the Director as recorded in his decision [7.41] - [7.42] without putting forward any proper or valid grounds for her intended appeal to the Board.

18. In its decision of 24 May 2016 the Board found the Applicant’s explanation given in her Notice of Appeal did not provide any information which might satisfactorily explain the delay, nor any effective explanation covering the whole of the period of delay [13]. I agree with the Board’s observation, although even on the basis of its own assessment, the Applicant’s delay was only for 4 days which cannot on any view be considered as significant.

19. However, it is notable that the Board did also go on to consider the other relevant matters of facts within its knowledge to see whether by reason of any special circumstances that it would be unjust not to allow the late filing of the Applicant’s Notice of Appeal, as stipulated by section 37ZT(2)  & (3)  of the Ordinance which it alluded to in its decision, and of which it stated as follows:

‘14. The Petitioner’s statement in Section 5 of the Notice does not disclose any special circumstances by reason of which it would be unjust not to allow late filing of the Notice. There has been no denial of justice, nor any unfairness, to the Petitioner during the whole of the process of consideration of her claim for non-refoulement protection on grounds of BOR 3 risk and persecution risk. The Petitioner was assisted and represented by the DLS at every stage of the process of determination of her claim.’

20. In addition, the Board also did take into account of the factual basis of the Applicant’s claim in what I believe to be its consideration of the merits, if any, of her appeal, as held by the Court of Appeal in Re Qasim Ali, [2019] HKCA 430, to be part of the relevant matters of facts within the knowledge of the Board required by section 37ZT(2)  of the Ordinance to take account of, and of which it stated in paragraph 15 of its decision as follows:

‘In case there might be any other relevant matters of fact which might explain the Petitioner’s delay in filing the Notice, I have also considered the factual basis of her claim as outlined in the decision dated 23 July 2015. There is nothing in the facts relied on by the Petitioner which might amount to special circumstances by reason of which it would be unfair or unjust not to allow the late filing of the Notice.’

21. Furthermore, the fact that it has been established by the Director in his decision that the risk of harm in the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of Nepal, against which she did not raise any proper or valid ground for her intended appeal in her Notice of Appeal as noted above, there would have been no justification to afford her with non-refoulement protection in Hong Kong even if she had not been late with the filing of her appeal to the Board: see TK v Jenkins & Anor [2013] 1 HKC 526.

22. 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.

23. For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reason for her serious delay, I refuse to extend time and accordingly dismiss her leave application.”

The EOT Decision

13.  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 after the order.  No notice of appeal was filed by the applicant within the 14-day period.  On 24 March 2021, the applicant filed a summons for extension of time to appeal (“the EOT Summons”).  By then, the applicant was almost three months late with her intended appeal.

14.  By the EOT Decision, the Deputy Judge considered the applicant’s delay of almost three months as very substantial.  The applicant explained at the hearing of the EOT Summons on 1 June 2021 that she did not receive the Leave Decision in the mail as she changed her address sometime in June 2020, and it was much later that she was handed the Leave Decision from her former co-tenant which she claimed to have been sent to her former address.  By then, she was already out of time.

15.  The Deputy Judge noted that the Leave Decision was sent on 15 December 2020 to the applicant’s then reported address and was not returned through undelivered post.  The Deputy Judge correctly noted that if the applicant had changed her address as contended, it was her duty to inform the relevant authorities including the Court as soon as possible.  Accordingly, the Deputy Judge was not satisfied that the applicant had provided any good reason for her serious delay.  Given that the applicant also did not put forward any proper or valid proposed grounds of appeal or any error in the Leave Decision, there was no prospect of success in her intended appeal and the Deputy Judge dismissed the EOT Summons on 22 June 2021.

The Present Application

16.  In her present summons and supporting affirmation both dated 30 June 2021, the applicant did not provide any viable grounds of appeal and only stated that she did not agree with the previous decision and she did not want to go back to Nepal.

17.  The applicant failed to comply with the directions given by the Registrar of Civil Appeals on 30 June 2021 and did not lodge written submissions.

Discussion

18.  Following the approach this Court has adopted in Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at [3] - [8], we will treat the present application as a renewed application for extension of time to appeal against the Leave Decision.

19.  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 delay; (c)  the prospect of success of the intended appeal; and (d)  the prejudice to the putative respondent if an extension of time was granted: Re Rahman Wasif [2019] HKCA 299 at [13].

20.  We consider that the delay of almost three months to be substantial and we agree with the Deputy Judge that if the applicant did change her address in June 2020 as alleged, it was her duty to update the Court with an address to which correspondence or notice could come to her attention in a timely manner, otherwise she should bear the consequences of delay and her delay was not excusable.

21.  In the circumstances, as the applicant failed to give any cogent explanation for her delay in bringing the intended appeal, the Court will only grant extension of time if her 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].

22.  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].

23.  Nowhere in the summons or supporting affirmation of this application did the applicant identify any proper grounds of appeal or errors committed by the Deputy Judge.  As such, no viable grounds of appeal are given by the applicant.  The intended appeal must fail on this basis alone.

24.  As the applicant failed to identify any proper grounds of appeal, 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 applicant’s summons dated 30 June 2021 dismissed.