RE SHERPA CHHIRI

CAMP 328/2022

[2023] HKCA 421

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 328 OF 2022

(ON AN INTENDED APPEAL FROM HCAL 1042/2019)

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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 KW Lung (“the Judge”)  dated 16 August 2022 refusing to extend time for the applicant to appeal against his decision dated 24 May 2022 refusing to grant leave to the applicant to apply for judicial review. The intended judicial review was purportedly against (i)  the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”)  dated 20 March 2019 (“the Board’s Decision”)  dismissing the appeal against the decision of the Director of Immigration (“the Director”)  dated 8 August 2018 rejecting the applicant’s non-refoulement claim (“the Director’s Decision”); and (ii)  the Director’s Decision itself.

Background

2.  The applicant is a national of Nepal. He entered Hong Kong on 12 May 2014 as a visitor, but he overstayed and was arrested by the police on 28 January 2015.  On 30 January 2015, he raised a non-refoulement claim.

3.  The applicant’s claim was based on a fear of being harmed or killed by members of the Women’s Organisation known as Aama Samuha. The details of the applicant’s claim have been summarised by the Judge at [4] to [6] of his decision (“the CALL-1 Form”)[1].

4.  By a Notice of Decision dated 8 August 2018, the Director decided against the applicant’s claim.  The Director’s Decision covered the torture risk[2], 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 18 January 2019, the Board dismissed the applicant’s appeal by its Decision.  In dismissing his appeal, the Board cast doubt on the applicant’s credibility by reason of the discrepancies in his evidence, and in any event the Board concluded that the risk of harm feared by the applicant was very low if not non-existent.

The Judge’s decision

6.  The applicant filed a Form 86 on 17 April 2019 purportedly seeking to judicially review the Director’s and the Board’s Decisions, without setting out any grounds.  In accordance with the principles stated in Re Moshsin Ali [2018] HKCA 549, the Judge treated the intended judicial review as against the Board’s Decision only.

7.  In his supporting affirmation, the applicant complained, in gist, that notwithstanding that he was legally represented before the Director, he was unrepresented in his appeal to the Board.  He also contended that he was prejudiced by his lack of proficiency in English, notwithstanding that he was assisted by an interpreter at the hearing before the Board.

8.  After summarising 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 leave for judicial review.  The Judge gave the following reasons in refusing leave to apply for judicial review at [13] to [22] of the CALL-1 Form:

“13.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526 CA, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

14.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

15.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

‘13.(1)  …Assessment of evidence and COI materials and 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 or procedural unfairness or irrationality in the decision of the Board.’

16.  Those grounds raised by the applicant above do not assist his application.

17.  The Court of Appeal in Re Khan MD Omar [2019] HKCA 803, 19 July 2019 at §18 held:

‘Interpreter services were provided at hearings at every stage. Such services were also available at the time when the applicant was assisted by Duty Lawyer. We do not accept that the alleged lack of language assistance at other time would render the process unfair in the present case.’

18.  Therefore, grounds (1)  and (4)  fail. The adjudicator has to use the official language, which is either English or Chinese, for his Decision. Ground (2)  fails. As to Ground (3), the adjudicator has given sufficient reasons on the credibility and reliability of the applicant’s evidence in paragraph 30 of the Board’s Decision.

19.  In any event, the applicant’s application fails as the Board found that state protection would be available to him and internal relocation was an option open to him. He did not dispute these findings in this application.

20.  The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

21.  There is no evidence that shows that the applicant has any realistic prospect of success in his intended judicial review.

CONCLUSION

22.  I therefore refuse to grant leave to the applicant to apply for judicial review.  Accordingly, I dismiss his application.”

The present application for extension of time to appeal

9.  The applicant’s last known address in his Form 86 was at Temple Street, Yau Ma Tei (“the Temple Street Address”).  According to the court’s record, a copy of the CALL-1 Form and a sealed copy of the Judge’s order were sent by post to the applicant at the Address on 24 May 2022, and were not returned undelivered.

10.  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 24 May 2022.

11.  The applicant thereafter took out a summons in the Court of First Instance on 19 July 2022 seeking extension of time to appeal, in which his address was stated to be at Canton Road, Yau Ma Tei (“the Canton Road Address”).  In his supporting affirmation filed on the same date, he deposed that he “did not get the High Court decision”.

12.  The applicant’s application to appeal out of time was dismissed by the Judge on 16 August 2022[6].

13.  By a summons filed on 1 September 2022, the applicant renewed his application for an extension of time to appeal before this court.  In the summons, the applicant stated that he wished to set aside (which we take to mean that he seeks leave to appeal against)  the decision given by the Judge on “16 August 2022”, being the Judge’s refusal to grant an extension of time for him to appeal against his decision dated 24 May 2022. Although in his summons the applicant purported to seek leave to file a Notice of Appeal in respect of the decision of the Judge dated 16 August 2022, we shall treat it as a renewed application for an extension of time to appeal against the substantive decision of the Judge in the CALL-1 Form dated 24 May 2022, by which leave for judicial review was refused. 

14.  In his supporting affirmation, as well as in his written submissions lodged on 15 September 2022, the applicant repeated the complaints concerning his lack of English proficiency and absence of legal representation when his claim came before the TCAB and the High Court.

Discussion

15.  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.

16.  As noted above, the CALL-1 Form was sent to the last known address of the applicant at the time (i.e. the Temple Street Address)  and was not returned undelivered. 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 on his substantive application for leave for judicial review within the period he was permitted to lodge the intended appeal.

17.  Even if the applicant had moved by the time of the Judge’s decision of 24 May 2022, it was incumbent upon him to notify this court of any change of address in good time and without delay.  He has not only failed to do so, he has also failed to explain in his applications for extension of time (before the Judge and now before this court)  when he moved to the Canton Road Address, and how and when he had eventually come to learn of the Judge’s decision.  The applicant must bear the consequence for such failures.  Accordingly, we are of the view that the applicant has proffered no reasonable excuse for the delay.

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

19.  The applicant has not condescended to any particulars, in the Form 86 or otherwise, as to on what basis the Board is said to have acted unlawfully or procedurally unfairly in reaching its Decision, or how such Decision could be said to be Wednesbury unreasonable.  That being the case, the application for leave for judicial review was hopeless and rightly dismissed by the Judge. 

20.  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.

21.  We are unpersuaded by the applicant’s complaint of a lack of legal representation at the Board level, as it does not follow that the high standards of fairness applicable 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.  In this regard, we note that, as submitted by the applicant, he was legally represented at the Director level in the processing of his non-refoulement claim.

22.  Further, the applicant’s complaint of prejudice by reason of his lack of proficiency in English also appears to be unfounded and of little or no merit.  Not only was he assisted by an interpreter at all levels of the proceedings, he was able to, either by himself or with assistance from others, lodge with the court applications and submissions written in comprehensible English. 

23.  It is well-established that an appeal against a refusal to grant leave for judicial review is not a fresh application for leave, and that an applicant must point to errors on the part of the Judge.  This has clearly not been done here.

24.  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 1 September 2022 is accordingly dismissed.