RE NAINAKALA BANEM LIMBU

CAMP 99/2020

[2021] HKCA 52

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 99 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO 942 OF 2018)

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J U D G M E N T

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

1.  On 8 March 2019, DHCJ K.W. Lung (“the Judge”) refused to give the applicant leave to apply for judicial review proceedings concerning her non-refoulement claims (“the JR Decision”). Under Order 53 r.3(4) Rules of the High Court (“RHC”), where an application for leave to apply for judicial review is refused by a judge, the applicant may appeal against the judge’s order to the Court of Appeal within 14 days after such order. The deadline was therefore 22 March 2019.

2.  The applicant did not lodge an appeal in time.  Some 9 months later, she filed a summons in the Court of First Instance on 27 December 2019 for extension of time to appeal.  That summons was dismissed by the Judge on 2 July 2020. 

3.  On 14 July 2020, the applicant filed her summons in CAMP 99/2020 in the Court of Appeal applying to this court for an extension of time to appeal the JR Decision.

4.  Under Order 59 r. 14A(1) RHC, this Court may determine an application for extension of time to appeal without an oral hearing.  We are of the view that it is appropriate to determine the present application on paper without a hearing. The applicant filed her written submissions on 17 August 2020 pursuant to directions given by the Registrar of Civil Appeals.  

Background

5.  The brief background is as follows.  The applicant is a national of Nepal.  She is married with children and helped her family with household chores and farming.  She claimed that she and her family had been assaulted by villagers who had made her father take up infertile land instead of better land that he had inherited.  They were injured but they did not report these matters to the police.  The villagers demanded them to leave the village but they did not leave. Later, 2 different groups of villagers, namely Limbuwan and Maoists, requested the applicant and her family to support their respective groups.  In around 2004 to 2005, they frequently went to her home to threaten and assault her and her family.  The applicant then went to Dharan with her children and stayed there for around 2 to 3 years.  She claims she was located by the Limbuwan and the Maoists and was beaten by them.  However, she did not make any reports to the police.  She then left Dharan for Kathmandu and entered Hong Kong illegally in 2007.     

6.  The applicant’s allegations in support of her claim have been set out in detail in the TCAB’s Decision (as defined in [8] herein below) and in gist in the JR Decision. 

7.  The applicant attended the adjourned hearing and testified before the Torture Claims Appeal Board (“TCAB”).  The TCAB considered the applicant’s evidence and was not satisfied that the alleged harm by the Limbuwan and the Maoists had attained the sufficient level of physical or mental severity [25].  The TCAB found that there was no objective evidence of participation in any official capacity [33].  Also, she had never reported her case to the police and there was no evidence to support her allegation that there was no state protection [51].  The TCAB found that the applicant did not make out her claims in respect of the torture risk [44], BOR 3 risk [52], persecution risk [59], or BOR 2 risk [71].

8.  Her claim was dismissed by the TCAB on 14 May 2018 (“TCAB’s Decision”). 

Application for leave to start judicial review

9.  On 25 May 2018, the applicant filed a Form No. 86 to apply for leave to judicially review the TCAB’s Decision.  The grounds put forward by the applicant were summarized by the Judge in [19] of the JR Decision:

“(1) the hearing bundle was given to her shortly before the appeal hearing and she did not have sufficient time to prepare her case;

(2) the contents of the hearing bundle were in English and she was unable to obtain interpreter service;

(3) she was confused at the appeal hearing;

(4) the Adjudicator was unfair and she had not given greater care to a self-represented claimant;

(5) the Adjudicator failed to obtain the requisite documents relevant to the applicant’s case;

(6) the Adjudicator had misdirected himself by considering that the applicant had to experience torture in the past in order to establish substantial grounds to believe that there was a risk of torture in future;

(7) the Adjudicator had not done sufficient research in the Country of Origin Information and his knowledge was not updated;

(8) the Adjudicator had relied upon hearsay information and outdated material in relation to the Country of Origin Information;

(9) the Adjudicator had given undue weight on the irrelevant material;

(10) the Adjudicator was wrong in state protection in her country;

(11) the Adjudicator had failed to call for psychological and psychiatric reports on the applicant; and

(12) the applicant was not legally represented at the appeal hearing.”

The JR Decision

10.  As mentioned earlier, the Judge refused leave for reasons set out in [20] - [28] of the Form CALL-1 ([2019] HKCFI 545):

“20.  The applicant appeared before me. She confirmed that she had no complaint against the Immigration officer or the Adjudicator. The above grounds were prepared by her lawyer. She also had a friend to assist her as well. Her lawyer told her that it was not necessary for him to come to court. She did not understand the above grounds herself.

21.  Grounds (1), (2) and (3) fail because she said that she was assisted by the interpreter at the Board and she had no problem with the appeal hearing.

22.  Grounds (4), (6), (7), (9) and (10) fail as they are her opinion without any evidence to support.

23.  Ground (5) fails because the applicant did not ask the Adjudicator to obtain the requisite documents for her.

24.  As to the allegation that the Board had relied on the source of news which was not officially recognized or it is simply hearsay, under section 18 of Schedule 1A(1) of the Ordinance, the Board may consider the same evidence that was before the Immigration officer. The Director is entitled to consider any relevant materials for the investigation under section 37ZB of the Immigration Ordinance (“the Ordinance”). The Director had considered the relevant reports in relation to the Country of Origin Information. They are recognized information for assessment of the risks as raised by the applicant in the legal proceedings. The Court of Final Appeal had also relied upon The Handbook (United Nations High Commission for Refugees) in its Judgment in  Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187. The applicant has not set out any reason why she considers that the information is unreliable. Ground (8) therefore fails.

25.  Ground (11) fails as the applicant did not raise this issue with the Immigration officer or the Adjudicator. She simply said that she told the Immigration officer that she had a bad memory because someone had hit her head. The Immigration officer advised her to go to the hospital. She refused and only went to the dispensary for some medicine herself.

26.  The Court of Appeal in  Re: Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018, Lam VP [22] had said: “This Court has repeatedly held that neither the high standard of fairness laid down in Sakthevel Prabakar v Secretary for Security (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51 of 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, and Re Lopchan Subash [2018] HKCA 37. The applicant already had the benefit of legal representation in presenting his case to the Director of Immigration.  We do not find anything amiss arising from lack of legal representation in the process before the Board.” Ground (12) therefore fails.

27.  I find that the applicant was unable to show that she had a reasonable chance of success in her proposed judicial review.

CONCLUSION

28.  As the applicant has no reasonable chance in the judicial review, I refuse to grant her leave. Accordingly, I dismiss her application.”

11.  The applicant only sought an extension of time in December 2019 to appeal the JR Decision.  This was dismissed by the Judge on 2 July 2020.  She then made an application to this court on 14 July 2020 for extension of time to appeal the JR Decision.

Legal Principles

12.  In considering whether to extend time for appealing, the Court will have regard to: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of success of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted (although the absence of prejudice does not mean that an extension would be granted).

Discussion

13.  As for (1), the applicant was late by more than 9 months between the JR Decision and the summons filed in the Court of First Instance.  Her delay was substantial. 

14.  As for (2), the reasons for the delay, the applicant stated in her supporting affirmation that “I would like to appeal out of time as I didn’t [have] the appropriate means nor I received the decision on time” (sic).  For her application for time extension before the Judge, she explained that she received the Judge’s Decision late because she was in prison, but there was no supporting evidence relating to relevant dates. 

15.  However, the most important consideration is (3) the prospect of success of the intended appeal.  The applicant did not provide any proper grounds for her intended appeal before the Judge.  Nor to this court.  The TCAB had rejected her case on the facts.     

16.  Her written submissions are vague and bare assertions, which do not support her intended appeal. 

17.  It is well-established that the application for leave to start judicial review proceedings is not a re-hearing by the judge of the TCAB proceedings, and the function of this court is to consider any alleged errors on the part of the judge.  We do not see any in this case.    

18.  As the intended appeal is unarguable, it would be futile to extend the time to appeal.  Accordingly, we dismiss the applicant’s summons filed on 14 July 2020.

19.  Since the present application is totally without merit, we further make an order under Order 59 r. 2A(8) RHC that the applicant may not request our determination to be reconsidered at an oral hearing.