RE GURUNG BIJAY

CAMP 309/2022, [2024] HKCA 530

On Appeal From [2022] HKCFI 842

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 309 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 429 OF 2019)

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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 filed on 22 August 2022, the applicant applied to this court for leave to appeal against the order made by Campbell‑Moffat J (“the Judge”) dated 5 August 2022 refusing the applicant’s application for an extension of time to appeal ([2022] HKCFI 2462) (“the EOT Decision”) against the Judge’s previous order dated 29 March 2022, by which the Judge refused to grant extension of time to the applicant for his application for leave to apply for judicial review and dismissed his application for leave to apply for judicial review ([2022] HKCFI 842) (“the Leave Decision”).

2.  The intended judicial review was directed at the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”) dated 12 July 2018 (“the Board’s Decision”), refusing the appeal against the decision of the Director of Immigration (“the Director”) dated 12 February 2018 refusing to re-open his non‑refoulement claim which was deemed as withdrawn on 17 August 2017 (“the Director’s Decision”).

3.  Having considered the papers, 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.  There is no material available from the court files to confirm the nationality of the applicant.  He claimed to have first entered Hong Kong in 2001 on a dependant visa, but his marriage with his wife broke down thereafter.  He also claimed that at some point in 2016, he was stopped by the police and was arrested for not possessing an ID and was later detained at Castle Peak Bay Immigration Centre: see the EOT Decision at [2].  While being detained, he lodged a non-refoulement claim by way of written representation dated 30 December 2016 on the basis that if refouled, he would be harmed or killed by an influential family in Nepal for revenge because they accused him of negligence in performing his duty and causing the death of a member of the family at a drug rehabilitation centre in Nepal where the applicant used to work.

5.  The procedural history of the applicant’s claim was set out by the Judge at [1] ‑ [5] of the Leave Decision.  In gist, the applicant was served with a Notice to Persons making a Non-refoulement Claim together with a blank non-refoulement claim form (“NCF”) on 19 July 2017 which he was required to complete and return within 28 days.  On 24 July 2017, he was provided with legal assistance by the Duty Lawyer Service (“DLS”).  On 27 July 2017, he was released on recognisance.  Despite the Director’s letter dated 9 August 2017 reminding the applicant to return his completed NCF within the required time and of the consequence of his failure to do so, the applicant did not submit his NCF.  Meanwhile, on 14 August 2017, the DLS informed the Immigration Department that they were not able to contact the applicant and had no further instructions to act for him regarding his non-refoulement claim.

6.  As the applicant failed to return his completed NCF on or before 16 August 2017 and no application for extension of time was submitted by the applicant, the applicant was informed by the Director by way of a letter dated 17 August 2017 that his non-refoulement claim had been treated as withdrawn since 17 August 2017.

7.  On 21 December 2017, the applicant was arrested by the police and was returned to the custody of the Director on 23 December 2017.

8.  By written representations dated 9 January 2018 and 16 January 2018, the applicant wrote to the Director requesting to re-open his non-refoulement claim, claiming that he had been ill and in financial difficulty.  The Director wrote to the applicant on 18 January 2018 requesting the applicant to provide information and supporting evidence by 1 February 2018.  By written representation dated 19 January 2018, the applicant merely repeated his request to re-open his non-refoulement claim, but failed to provide any supporting evidence.

9.  By the Director’s Decision, the Director refused to re-open the applicant’s claim as the applicant failed to provide any medical proof or explanation to show why his poor health or financial problem had prevented him from returning the completed NCF as required despite the legal assistance provided by the DLS.

10.  Subsequently, the applicant appealed against the Director’s Decision to the Board.  Having considered all the relevant materials and by the Board’s Decision, the Board dismissed his appeal and confirmed the Director’s Decision.

The Leave Decision

11.  On 15 February 2019, the applicant filed a Form 86 with a supporting affirmation applying for leave to apply for judicial review against the Director’s Decision and the Board’s Decision.  By then, he was over four months late with his application[1].  However, no specific particulars or grounds for his intended challenge were provided in the Form 86 or in his supporting affirmation.  Nor was any explanation provided for his delay in applying for leave to apply for judicial review.  As the applicant did not request for an oral hearing, the Judge considered his application on paper.

12.  By the Leave Decision, the Judge refused to grant extension of time to the applicant for leave to apply for judicial review and dismissed his application for leave to apply for judicial review.  Her reasons were set out in detail at [8] ‑ [9] of the Leave Decision:

“8. In this case the applicant was late by just over four months and has not offered any explanation for this delay. From the chronology of events it would appear that the applicant only seeks to avail himself of the regime when he has been incarcerated. In view of his delay, he must satisfy the Court that there is a reasonable prospect of success in his intended leave application and that there will be no prejudice to the putative respondent before an extension of time will be granted. The Director acted wholly in accordance with the relevant legislation and procedural guidelines and was entirely correct to a) deem the original application by written representation to be withdrawn and b) refuse to re-open that application. The Adjudicator also properly considered the relevant legislation and could find no fault with the decision of the Director. There is no explanation before the Court as to why an extension of time for leave to apply for judicial review should be given nor any explanation as to why the Adjudicator was wrong to determine the matter as he did. I can find no error of law or procedure in the decisions made. The applicant’s claim is therefore not reasonably arguable and does not have a realistic prospect of success.

9. This application is dismissed as being out of time and leave for extension of time is refused.”

The EOT Decision

13.  Under Order 53, rule 3(4) of the RHC, the applicant may appeal against the Leave Decision 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.

14.  On 15 June 2022, the applicant filed a summons (“the EOT Summons”) together with a supporting affirmation for extension of time to appeal against the Leave Decision.  By then, he was over two months late with his intended appeal.  In his supporting affirmation, the applicant asserted that he did not receive the Leave Decision within 14 days and he should be given a reasonable opportunity to present his case.  His application was heard before the Judge on 5 August 2022 with the assistance of a Nepali interpreter.

15.  By the EOT Decision, the Judge refused to grant extension of time to appeal to the applicant.  The Judge noted the Leave Decision was sent on the same day of the Leave Decision to the applicant’s last reported address without being returned through undelivered post which was the same address as set out in the EOT Summons.  During the hearing for the EOT Summons, the applicant claimed that he only learnt of the Leave Decision when he reported to the Immigration Department under his recognisance, which he did on a six-week basis.  The Judge considered that the application has been in Hong Kong since at least 2016 and he should have understood the necessity to act promptly when dealing with his application for asylum, but he failed to act promptly to rectify his error in not providing the correct address or not ensuring that he checks his mail on a regular basis.  The consequence of any delay arising from failing to do so would fall upon the litigant and the Judge found that the applicant had failed to provide any good reason for his delay.

16.  Noting that the matter was previously considered on paper as the applicant did not request for an oral hearing, and also that the applicant did not put forward any proper or valid grounds of appeal, the Judge found that there was no reasonable prospect of success in his intended appeal and dismissed the EOT Summons.

The Present Application

17.  By a summons and supporting affirmation both filed on 22 August 2022, the applicant applied for leave to appeal the EOT Decision.  In his supporting affirmation, he repeated that that he did not appeal on time because he did not receive the Leave Decision timeously. On 24 August 2022, the applicant filed an “amended” summons, without leave, to revise his name appearing on the summons dated 22 August 2022.

18.  Pursuant to the directions made by the Registrar of Civil Appeals on 22 August 2022, the applicant lodged his written submissions.  In those submissions, he asserted that he did not know about the judicial system or the appeal procedure.  He complained that the Judge did not consider his reasons stated in the EOT Summons.  He contended that the Board and the Director had failed to take into account relevant considerations, taken into account irrelevant matters, or failed to give proper weight to relevant considerations and materials and as such, their decisions were illegal.

Discussion

19.  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.

20.  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].

21.  We consider that his delay of over two months is substantial and we agree with the Judge that the applicant has failed to provide any good reason for his delay.  Ignorance of the procedural rules and time limits is generally not an excuse for delay: Re Gurung Min Bahadur [2018] HKCA 226 at [10].  As such, 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]; and Re MA [2019] HKCA 1020 at [18].

22.  The general approach in dealing with appeals in non‑refoulement claims is set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  In particular, in assessing the merit of an intended appeal, this Court will focus on the Leave Decision and will only consider reversing that decision if an applicant can demonstrate that the 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.  At the outset, the applicant’s contentions are all general and bare assertions without any specific particulars or evidence in support.  The Judge carefully considered his reasons provided in the EOT Summons and during the oral hearing and gave a thorough analysis of why there was no good reason provided for his delay and why his intended appeal had no prospect of success.  It is therefore misconceived to argue that the Judge did not consider his reasons in the EOT Summons.  The other contentions were all directed at the decision of the Board and the Director and did not identify any error of the Leave Decision.  Accordingly, his submissions are plainly not proper grounds of appeal.

24.  In any event, we have reviewed the Board’s Decision and the Director’s Decision, and the reasons they gave for their decisions.  We see no errors of law, or mistakes of fact, or procedural impropriety in reaching those decisions.  There is no basis to disturb the Leave Decision.

25.  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 applicant’s summons filed on 22 August 2022 is dismissed.

26.  For completeness, given that we have dismissed the appeal on merits, it is unnecessary for us to deal with the “amended” summons filed on 24 August 2022.  In the premises, we will make no order under the summons filed on 24 August 2022 seeking to revise the applicant’s name on the earlier summons.