RE CHONGBANG SHREE PRASAD

CAMP 303/2021

[2022] HKCA 187

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 303 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 2894 OF 2018)

________________________

________________________

________________________

J U D G M E N T

________________________

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

1.  By a summons dated 29 July 2021, the applicant applied to this Court for leave to appeal against the order made by Deputy High Court Judge KW Lung (“the Deputy Judge”)  dated 22 July 2021 refusing the applicant’s application for extension of time to appeal ([2021] HKCFI 1939)  (“the EOT Decision”)  against the Deputy Judge’s earlier decision dated 7 August 2020, whereby the Deputy Judge refused his application for leave to apply for judicial review ([2020] HKCFI 1882)  (“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 3 December 2018 (“the Board’s Decision”), dismissing the appeal against the decisions of the Director of Immigration (“the Director”)  dated 13 March 2015 and 26 May 2017 rejecting his claim for non-refoulement protection (collectively referred as “the Director’s Decisions”).

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. He married his first wife in Hong Kong in 1996 and was allowed to remain up to 18 June 2000.  His application for extension of stay was subsequently refused by the Immigration Department and the applicant overstayed in Hong Kong.  On 18 May 2009, the applicant surrendered to the Immigration Department.

5.  Thereafter, he lodged a torture claim by way of written representation dated 12 October 2011.  Upon the commencement of the Unified Screening Mechanism, his torture claim was taken to be and assessed as a non-refoulement claim by the Director.  In essence, the basis of his non-refoulement claim was that he would be harmed or killed by his ex-wife with the help of the Maoists if he returned to Nepal.  Details of the applicant’s claim were summarised by the Deputy Judge at [4] - [5] of the Leave Decision.

6.  By a Notice of Decision dated 13 March 2015, the Director rejected the applicant’s non-refoulement claim.  His decision covered all applicable grounds including torture risk[1], BOR3 risk[2] and persecution risk[3].

7.  By a Notice of Further Decision dated 26 May 2017, the Director rejected the applicant’s non-refoulement claim on the basis of BOR2 risk[4].

8.  The applicant then appealed against the Director’s Decisions to the Board.  With the assistance of an interpreter qualified in both the Nepali and English languages, the applicant attended an oral hearing before the Board on 10 October 2018 and gave evidence.  The Board dismissed his appeal on 3 December 2018 and confirmed the Director’s Decisions.  The Board found gaps and inconsistencies in the applicant’s evidence and having carefully assessed his claim and evidence, the Board rejected the applicant’s claims in their entirety and considered that the applicant would not face a real risk of harm upon returning to Nepal.  Accordingly, the Board dismissed his appeal.

The Leave Decision

9.  On 17 December 2018, the applicant filed a Form 86 together with a supporting affirmation for leave to apply for judicial review against the Board’s Decision.  However, no ground of review was provided by the applicant in his Form 86.  In his supporting affirmation, he only stated that the Board’s Decision was unfair and unreasonable without providing any specific particulars or elaboration.

10.  After considering his application on paper, by the Leave Decision, the Deputy Judge dismissed his application for leave to apply for judicial review for the following reasons:

“13. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. See paragraph 10 above.

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

‘13 … 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.’

15. The Board rejects his evidence of the facts in support of his claim. Therefore, he has no factual basis for his application.

16. 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.

17. There is no evidence that shows that the applicant has any reasonable chance of success in his intended judicial review.

CONCLUSION

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

The EOT Decision

11.  On 25 August 2020, the applicant filed a summons together with a supporting affirmation[5] for extension of time to appeal against the Leave Decision (“EOT Summons”).  In his summons, he contended that the Leave Decision was unfair and unreasonable.  In his supporting affirmation, he alleged that there were two grounds that involved points of law of great and general importance, namely, whether the lack of legal representation was a reasonably arguable basis to challenge the fairness of process; and whether there ought to be an additional basis for advancing a case on the BOR2 risk separated from the BOR3 risk, torture and persecution.

12.  By the EOT Decision, the Deputy Judge refused his application for extension of time to appeal as the applicant was unable to show that he had any reasonable prospect of success in his intended appeal against the Leave Decision.  Accordingly, his EOT Summons was dismissed.

The Present Application

13.  By a summons filed on 29 July 2021, the applicant applied for leave to appeal against the EOT Decision.  However, no ground was given by the applicant in the said summons.

14.  Pursuant to the directions given by the Registrar of Civil Appeals on 29 July 2021, the applicant lodged his written submissions on 5 August 2021.  In those submissions, he complained of the lack of legal representation and language assistance and that he was discriminated because of his language status and had not been treated equally before the law.  The applicant further alleged that the delay in filing the EOT Summons was because he was not fluent in English and more time was needed in preparing his case documents.  The applicant then claimed that the prospect of his intended appeal would be high as he would have a genuine risk of facing harm should he return to Nepal and that his future in Nepal would be bleak.

Discussion

15.  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.

16.  Before going to the merits of the present application, we will first address the issue on delay.

17.  Pursuant to Order 53, rule 3(4)  of the RHC, an applicant may appeal to the Court of Appeal against the Deputy Judge’s order refusing leave to apply for judicial review within 14 days after such refusal.

18.  By reason of section 31(1)  of the High Court Ordinance, Cap 4, the month of August, being the Court’s summer vacation[6], is to be excluded in calculating the 14-day time limit for filing the Notice of Appeal under Order 53, rule 3(4)  of the RHC.  Accordingly, the time for the applicant to lodge an appeal against the Leave Decision ended on 14 September 2020.

19.  As such, leave was not required as the applicant was within time to lodge an appeal against the Leave Decision on 25 August 2020.  At that time, he should have filed a Notice of Appeal against the Leave Decision instead of filing the EOT Summons for extension of time to appeal.  However, he had not lodged a Notice of Appeal by 14 September 2020; he would now need to ask for an extension of time from this Court to do so.  For that, although the Court might find the delay to be excusable, we would still need to consider the merits of his intended appeal: Re Rahman Wasif [2019] HKCA 299 at [13], Re Adumekwe Rowland Ejike [2019] HKCA 702 at [19] and Re Rahman Wasif [2019] HKCA 299 at [13].

20.  We consider that his intended appeal is wholly devoid of merit.

21.  As a start, all the court documents filed in the Court below and before this Court were in English.  It is clear that either the applicant is conversant with the English language or he has access to language assistance of his own if he finds it necessary.  The applicant was also assisted by an interpreter qualified in the Nepali and English languages during the hearing before the Board.

22.  It has also been repeatedly emphasised by the Court of Appeal that as a matter of law, a non-refoulement claimant is not entitled to free legal representation at all stages of the process and that the high standard of fairness required by law does not entail interpretation service being made available to an applicant all the time as he desires: Re Zunariyah [2018] HKCA 14 at [18]; Re Zahid Abbas [2018] HKCA 15 at [11]; Re Tariq Farhan [2018] HKCA 17 at [11]; and Re Lopchan Subash [2018] HKCA 37 at [13]; Cucun Fatimah v Torture Claims Appeal Board [2019] HKCA 1264 at [20] and Re Gurung Sagar [2019] HKCA 658 at [12].  Accordingly, there is no merit in his complaints.

23.  Moreover, in relation to his fear of facing harm upon returning to Nepal, they are all general and bare allegations without any specific particulars or evidence in support.  Clearly, they do not constitute viable grounds of appeal.

24.  For the above reasons, the applicant’s intended appeal is wholly devoid of merit.  His summons filed on 29 July 2021 is hereby dismissed.