RE SHRESTHA DEV KUMAR

CAMP 233/2024, [2025] HKCA 416

On an intended appeal from [2023] HKCFI 3361

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 233 OF 2024

(ON AN INTENDED APPEAL FROM HCAL 1529/2019)

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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 To (“the Judge”) dated 11 November 2024 refusing to extend time for the applicant to appeal against his decision dated 28 December 2023 refusing to grant leave to the applicant 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 (“the Board”) dated 21 May 2019 (“the Board’s Decision”) dismissing the appeal against the decision of the Director of Immigration (“the Director”) dated 26 September 2018 rejecting the applicant’s non-refoulement claim (“the Director’s Decision”).

Background

2.  The applicant is a national of Nepal.  He entered Hong Kong illegally on 1 January 2016, and he surrendered to the Immigration Department on 5 January 2016.  He lodged a non-refoulement claim by way of a written signification dated 5 February 2016.

3.  The applicant’s claim was based on a fear of being harmed or killed by his creditor Raju Magar, who was a committee member of the Unified Communist Party of Nepal (Maoist).  The details of the applicant’s claim have been summarised by the Judge at [4] to [15] of his decision (“the CALL-1 Form”)[1].

4.  By the Director’s Decision, 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 against the Director’s Decision.  After a hearing on 20 February 2019, the Board dismissed the applicant’s appeal by its Decision.  In dismissing the appeal, the Board found on the facts and the evidence the applicant would not face any genuine and substantial risk of harm should he be refouled.

The Judge’s decision

6.  The applicant filed a Form 86 on 4 June 2019, seeking to judicially review the Board’s Decision, without setting out any grounds for review.  In his supporting affirmation, the applicant merely exhibited a copy of the Board’s Decision.

7.  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 leave for the applicant to apply for judicial review.  The Judge gave the following reasons in refusing leave at [25] to [29] of the CALL‑1 Form:

“[25]  The function of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. In an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[11].

Grounds for judicial review

[26]  The Applicant did not put forward any grounds of application for judicial review in his Form 86 or in his supporting affirmation. In the absence of specific grounds of application or grounds with sufficient particulars, the Court could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision.

Discussion

[27]  Having rigorously examined the Board’s Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof and quoted relevant precedents in support of its Decision. The Board clearly understood that its duty was to consider the Applicant’s claims afresh and not just whether to uphold or dismiss the Director’s decisions in the Notice. It correctly identified the factual and legal issues raised in the claims.

[28]  The Applicant’s claim is founded on his fear of harm by RM, who is associated with the Maoists, for being unable to repay his debt owed to RM. However, the Board found him not credible and he had not even made up his mind to whom he was allegedly indebted. It found he had failed to prove he would face any genuine and substantial risk to his life on his return to Nepal whether from RM or the Maoists and that he could further reduce his risk by internal relocation. Applying the legal principles applicable to non-refoulement protection under the USM to these finding of facts, the Board found he is not entitled to protection under any of the four applicable grounds under the USM. The Decision of the Board is based on its assessment of the Applicant’s credibility and his risk of harm. The Board had carefully weighed the evidence and assessed his credibility. It found him incredible. It gave detailed reasons for its finding. As the Applicant bears the burden of proof of his claim, such a finding is fatal. It was on that basis that the Board found that the Applicant had failed to establish the factual basis to support his claim for non-refoulement protection under any of the four applicable grounds.

[29]  The Board’s Decision is a mixed finding of fact and of the law. Insofar as it is a finding of fact, it is exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality. Insofar as it is finding of the law, it is absolutely correct. The Decision was utterly without fault. There are no errors of law in its Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Board observed a very high standard of fairness. Its Decision does satisfy the enhanced Wednesbury test. It is not irrational. The Court is satisfied that the Applicant’s claim is not reasonably arguable. There is no realistic prospect of success in the proposed judicial review. For the above reasons, leave to apply for judicial review is refused.”

The present application for extension of time to appeal

8.  The applicant’s last known address at the time of the Judge’s decision was at Temple Street, Yau Ma Tei (“the Address”).  According to the court’s record, a copy of the CALL-1 Form and a sealed copy of the Judge’s order was sent by post to the applicant at the Address on 28 December 2023, which was not returned undelivered.  

9.  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 28 December 2023.

10.  The applicant thereafter took out a summons in the Court of First Instance on 12 September 2024 seeking extension of time to appeal, in which his address was stated to be the Tai Tam Gap Correctional Institution (“the Institution”).  In his Summons and supporting affirmation filed on the same date, he did not particularise the reasons or basis for his application for extension of time.

11.  The applicant’s application to appeal out of time was dismissed by the Judge on 11 November 2024[6].

12.  By a summons filed on 29 November 2024, 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 appeal against the decision given by the Judge on 11 November 2024, being the Judge’s refusal to grant an extension of time for him to appeal against his decision dated 28 December 2023. Although in the summons the applicant purported to seek leave to appeal against the decision of the Judge dated 11 November 2024, we shall treat it as a renewed application for an extension of time to appeal against the substantive decision of the Judge dated 28 December 2023, by which leave for judicial review was refused.  

13.  In the summons and his supporting affirmation, as well as in his written submissions lodged on 6 December 2024, the applicant merely recited the factual background to his claim and repeated the dangers he would allegedly face if he was refouled. 

14.  For completeness, we should mention that by letters dated 10 and 11 February 2025, the applicant informed the Court that he would make a “compromise” with his enemies and that his wish is now to return to Nepal.  He requested that all his “cases” be “closed”.

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 Judge’s decision was sent to the last known address of the applicant, i.e. at the Address, but was not returned undelivered.  It was incumbent upon the applicant to notify the court of any change of address as soon as possible, the date(s) of his detention at, and release from, the Institution, and any consequences of having failed to do so lie with him.  We are therefore of the view that the applicant has proffered no reasonable reason or explanation for the delay in bringing the intended appeal, nor has he explained when he had come to learn of the Judge’s decision.

17.  Given the applicant’s latest request for dismissal of the present application, an order for dismissal should be granted.  We have nonetheless proceeded to consider the merits of the intended appeal.

18.  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. 

19.  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.

20.  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.

21.  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 29 November 2024 is accordingly dismissed.