RE TAMANG BHAKTALAL

CAMP 543/2022

[2023] HKCA 154

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 543 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 529 OF 2020)

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

Introduction

1.  This is an application for extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan (“Judge”) dated 8 February 2022 refusing to grant the applicant an extension of time to seek leave to apply for judicial review and dismissing his application for leave to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board / Adjudicator of the Non-refoulement Claims Petition Office (“Board”) dated 30 August 2019. In that decision, the Board refused to allow the applicant to file a late appeal against the decision of the Director of Immigration (“Director”) dated 24 October 2016 rejecting his non-refoulement claim in relation to BOR 2 risk.[1]

2.  On 7 December 2022, the Judge refused to extend time for the applicant to appeal against his decision.

Background

3.  The applicant is a national of Nepal, born in 1995. Having arrived in Hong Kong as a visitor on 21 January 2014, he overstayed his permission to remain and was arrested by the police on 15 July 2014. After being referred to the Immigration Department, he raised a non-refoulement claim on the basis that if he returned to Nepal, he would be harmed or even killed by the local supporters of the Communist Party of Nepal because he supported their rival, the Rastriya Prajatantra Party (“RPP”). The details of his claim are set out at [9] of the Board’s earlier decision dated 14 October 2016.

4.  The applicant’s claim was initially assessed by the Director with reference to BOR 3 risk,[2] persecution risk,[3] and torture risk.[4] By notice of decision dated 16 May 2016, the Director rejected the applicant’s claim.

5.  The applicant appealed to the Board against that decision of the Director. Following a hearing of the appeal on 29 September 2016, in its decision dated 14 October 2016, the Board dismissed the appeal and affirmed the decision of the Director. The Board found that the applicant joined the RPP only prior to the elections in 2013 and was a lowly grass-roots member / supporter. The applicant had very little knowledge about politics in general and about the different Maoist parties in particular. As to the fights referred to by the applicant, the Board found they were not political but more akin to fights between juvenile gangs or football hooligans, not about political ideology, but about “turf”. The Board concluded that the applicant had failed to show a well-founded fear of the requisite level of harm.

6.  The applicant was subsequently invited by the Director to submit additional information for the purpose of considering his claim with reference to BOR 2 risk. The applicant replied but did not submit any further information. By notice of further decision dated 24 October 2016, the Director rejected the applicant’s non-refoulement claim with respect to BOR 2 risk.

7.  The applicant filed a notice of appeal against that subsequent decision of the director on 17 July 2017, which was out of time by over 8 months. The Board, as required by section 37ZT of the Immigration Ordinance (Cap 115), dealt with the question, as a preliminary issue without a hearing, as to whether the applicant should be allowed to file the late appeal. The Board noted that the applicant said he received the letter from the Immigration Department late but did not reveal when and why it was received late. Having taken into account the extent of the delay and the explanations put forward by the applicant as well as the merits of his non-refoulement claim, the Board decided in its written decision dated 30 August 2019 to reject the late filing.

The Judge’s decisions in the court below

8.  More than 4 months after the 3-month time limit prescribed by Order 53 rule 4(1) of the Rules of the High Court (Cap 4A) for applying for leave for judicial review had expired, on 7 April 2020, the applicant filed a Form 86 to seek leave from the Court of First Instance to apply for judicial review of the Board’s decision dated 30 August 2019. The grounds put forward were summarized by the Judge in [12] of the Form CALL-1 as follows:

“ 12. On 7 April 2020 the Applicant filed his Form 86 for leave to apply for judicial review of this second decision of the Board, and put forth the following grounds for his intended challenge:

(1) that the Adjudicator acted unreasonably and was procedurally unfair by placing too much reliance on COI but failed to take account of the Applicant’s personal background and experience;

(2) that the Director had listed relevant COI which supported the Applicant’s aversions that the police in his home country would not be able to protect but failed to give sufficient weight in those evidence and ruled otherwise against the Applicant;

(3) that the Director failed to recognize that corruption and incompetency of the administration in the Applicant’s home country is still a very serious problem of which various human rights organizations have compiled reports which stated testament to the Applicant’s assertions which was a clear case of unfair attitude shown by the Director which is in itself enough to render his decision void;

(4) that the Director has failed to attain high standards of fairness required by the Wednesbury test in the decision which should be considered unreasonable in the scope of public law;

(5) that the Adjudicator was procedurally improper and/or unfair when assessing whether to accept explanations provided by the Applicant and unreasonably required him to response to questions that he was not in a position to offer any response;

(6) that the Adjudicator failed to take into account the nexus of political parties and official corruption which exist in the Applicant’s home country thus making persecution effectively persecution by the state; and

(7) that the Adjudicator made a ruling to dismiss the Applicant’s appeal/petition based on findings which the Adjudicator ought to have allowed the appeal and thus the decision was irrational.”

9.  After an oral hearing attended by the applicant on 25 January 2022, the Judge gave his decision in writing on 8 February 2022, contained in the Form CALL-1, refusing to extend time for applying for leave for judicial review and dismissing the application for leave to apply for judicial review. His reasons are stated in [14] to [22] as follows:

“ 14. As the last day of the three-month period for him to file his Form 86 fell on 30 November 2019, the Applicant was therefore more than 4 months late with his application, and in considering whether to extend time, the court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393.

15. In the Applicant’s case, a delay of more than 4 months must be considered as very substantial and inordinate, for which he explained at the hearing of his application that he changed his address in 2019 but without informing the Board, and later he was detained at the Castle Peak Bay Immigration Centre (“CIC”) where he was subsequently informed of the decision but by then he was already out of time with his intended application.

16. The record shows that the decision was sent on the same day to his last reported address without being returned through undelivered post, and if the Applicant did in 2019 change his address without informing the Board and hence failed to receive the decision in the mail, of which he has produced no other details or documentary evidence to corroborate his bare assertions, he had only himself to blame for the delay, and as such I am not satisfied that he has provided any good reason for his serious delay.

17. As for the merits if any of the intended application, those proposed grounds of the Applicant as listed above are just some broad, vague and irrelevant assertions of the Applicant containing a few key words and phrases but without any particulars or specifics or elaborations as to how they apply to his case or how the Director or the Adjudicator had erred in their decisions, or in what way did they fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or what relevancy would police corruption or administration incompetency be to his case, or how did the Adjudicator fail to apply high standards of fairness in assessing his claim. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant. As such I do not find any of them reasonably arguable for his intended challenge, and in the absence of any error of law or irrationality or procedural unfairness in his process before the Board or in its decisions being clearly and properly identified by the Applicant, I do not find any merits in his intended application either.

18. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

19. In the Applicant’s case, the Board was entirely correct to refuse to allow the seriously late filing of his Notice of Appeal upon finding no good reasons for such delay or any merits in his appeal or any special circumstances which would otherwise make it unjust not to do so, and for that matter it was also in my judgment wholly correct in the Board’s first decision to reject the Applicant’s previous appeal regarding his claim under the other applicable grounds for the reasons referred to above. In the circumstances, and in the absence of any error of law or procedural unfairness in his process before the Board in either appeals or in its decisions being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the findings of the Board.

20. Furthermore, the fact is that it has been established by the Director in his first decision that the risk of harm in the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Nepal, a decision also confirmed by the Board’s first decision, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

21. 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 or of the Board’s refusal to refuse the seriously late filing of the Applicant’s second appeal upon finding no merits or basis regarding his BOR 2 Claim.

22. 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 his serious delay, I refuse to extend time and accordingly refuse his leave application.”

10.  The applicant did not appeal within the 14-day period prescribed by Order 53 rule 3(4) of the Rules of the High Court (Cap 4A), but took out 2 summonses on 7 June 2022 to seek an extension of time to appeal against the decision of the Judge. In one of the summonses he stated he filed the application late because he was a lay person and did not know the law, and that he had previously filed a summons but it was returned by the court. On 20 October 2022 the applicant filed a further summons asking for leave to appeal out of time. In the accompanying affirmation the applicant stated that he was unaware of the 14-day time limit, and that the Judge’s decision had been reached unfairly without allowing him an opportunity to clarify his case and the situation in his country.

11.  The Judge held another hearing for the application for extension of time on 23 November 2022. In his written decision given on 7 December 2022, the Judge dismissed the application, giving, inter alia, the following reason:

“ 6. More importantly, the applicant also failed to put forth any proper or valid draft or proposed grounds of appeal, or any particulars of any error in the decision or why it may reasonably be argued that the decision was unfair or unreasonable either in his summons or in his affidavit, and at the hearing of his summons he could only state that he is not satisfied with the decision as his life would still be at risk in his home country that he cannot yet return. As such and in the absence of any error in the decision being clearly and properly identified by the applicant, I do not see any prospect of success in his intended appeal.”

The renewed application before this Court

12.  By summons filed on 20 December 2022, the applicant seeks an extension of time from this court for him to appeal. In the supporting affirmation, the applicant stated that the Judge’s decision had been reached unfairly, that the period of delay in challenging the Board’s decision should not be considered severe as the applicant was unrepresented, that the Judge should have accepted the applicant’s ignorance of the rules as a valid reason for his delay, that high standards of fairness were applicable given that danger to life and limb was involved but such standards were not met, that the court should subject the decisions of the administrative bodies to rigorous examination and anxious observation, and that the Board acted in a procedurally unfair manner without properly assessing the applicant’s credibility.

13.  The applicant did not lodge any further written submissions for the application.

14.  In his affirmation the applicant sought an oral hearing but pursuant to Order 59 rule 14A of the Rules of the High Court, we consider it appropriate to determine this application on the basis of the written materials without an oral hearing.

Discussion

15.  Pursuant to Order 53 rule 3(4) of the Rules of the High Court (Cap 4A), an applicant has 14 days to lodge an appeal against a judge’s refusal to grant leave to apply for judicial review. An applicant who fails to do so cannot appeal unless extension of time to appeal is granted. In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will have regard to: (1) the length of delay; (2) the reasons for the delay; (3) the intended appeal’s prospect of success; and (4) the prejudice to the respondent if an extension of time were granted.

16.  The applicant was late by about 3.5 months in taking steps to appeal against the Judge’s decision. We do not find there to be any satisfactory and valid explanation for the delay. But leaving aside the reasons for the delay, we are satisfied that extension of time should be refused because of lack of merits in the intended appeal. In the present case, the Board had in its decision of 14 October 2016 rejected the applicant’s claim, with reference to torture risk, persecution risk and BOR 3 risk, for the reasons summarized above. The applicant did not seek judicial review of that decision. The applicant’s application for leave to apply for judicial review was targeted at the Board’s decision of 30 August 2019, refusing to admit the late appeal against the Director’s decision on BOR 2 risk.

17.  In reaching that subsequent decision, the Board had considered not only the applicant’s explanations for his delay, but also the merits of his non-refoulement claim. It was by law precluded from holding an oral hearing for that preliminary issue. Its decision to reject the late filing of the appeal is final. Judicial review is not an avenue of appeal from such decision. The court has no power to impugn the Board’s decision unless it is vitiated by some public law error, such as misdirection in law, procedural defect resulting in unfairness, and irrationality in the ultimate decision. Despite the applicant’s assertions, there is nothing of substance to show reasonable prospects of establishing any of these grounds.

18.  Nor has the applicant been able to point concretely to any error in the decision of the Judge refusing to grant leave to apply for judicial review.

19.  We do not see any prospect of success in the intended appeal. It would be futile to extend the time for a hopeless appeal. The applicant’s summons is accordingly dismissed.