RE LAMA PASANG

CAMP 32/2018

[2018] HKCA 312

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO CAMP 32 OF 2018

(ON APPEAL FROM HCAL 355 OF 2017)

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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 an extension of time to appeal against the decision of Deputy High Court Judge Woodcock on 9 March 2018 refusing leave to the applicant to apply for judicial review. The applicant is a Nepalese national who entered Hong Kong on 6 July 2013. He overstayed and was arrested on 16 July 2013. On 5 September 2013, he lodged a non-refoulement protection claim. The applicant’s claim is based on the threat by a Maoist affiliate arising out of analleged affair between his wife and the applicant.

2.  The Director decided against the claims on 10 July 2015.  The decision covered BOR 3 risk, persecution risk and torture risk (“Director Decision”). 

3.  The applicant appealed to the Torture Claims Appeal Board.  The Board dismissed the appeal on 13 January 2017 (“Board Decision”) without an oral hearing.

4.  The intended judicial review was in respect of the Board Decision.  The Form 86 filed by the applicant on 4 July 2017 did not give any ground for judicial review.  In his affirmation of 4 July 2017, he relied on the following grounds:

(1)  the applicant was not afforded an oral hearing;

(2)  the applicant did not have an opportunity to respond to the submissions by the Director to the Board.  He was not asked to provide written submissions in reply to the Director’s submissions; and

(3)  the Board significantly relied on information that was hearsay, outdated or was not officially recognized.  The Board erroneously concluded that it was safe for the applicant to return to Nepal.

5.  The judge reviewed the materials carefully.  After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, she gave the following reasons in refusing leave at [3] to [5] and [17] to [22] of the CALL-1 Form:

“3. The applicant has failed to file his application, his Form 86 on time, that is within three months of the date of the adjudicator’s decision (Order 53 Rule 4). He is in fact, almost three months late. His notice of application does not set out any reasons for the delay as it should. In fact, it does not acknowledge the application is late. It does not seek an extension of time to file this application as it should. His affirmation in support of his application does explain that he only received the TCAB decision in or around the end of June 2017 when he reported to the Immigration Department and was told that his appeal had been determined and he had to return to Nepal.

4. I have considered the legal principles for granting an extension of time for judicial review, the following factors are significant such as the length of delay, the explanation given for the delay, the merits of the substantive application, the prejudice to both the respondent and the public administration and whether the application raised any questions of general public importance.

5. The delay is not insignificant, there is no proper explanation for the delay and there is no good reason for extending time. This is because the merits of the substantive application, after perusal of the papers, are weak. Moreover, the application does not raise any questions of general public importance. Delay alone is enough to dispose of this application. However, if I am wrong, I proceed to consider the merits.

17. The applicant’s first ground is one of procedural impropriety; the adjudicator was wrong not to conduct an oral appeal hearing. His complaint is that written grounds of appeal do not equate to submissions and he has been deprived of an opportunity to make submissions as well as reply to submissions made by the Director.

18. As far as I am aware, there would have been no submissions submitted by the Director if no oral hearing was conducted. I see no procedural unfairness or impropriety in the adjudicator’s decision not to conduct an oral hearing. I do not see it as a failure to adhere to a high standard of fairness when he has obviously reminded himself of what he should consider and bear in mind in making such a decision. He did not make the decision hastily. A reading of his decision, in particular paragraphs 19-25 set out his reasons in full. There is no merit in this ground.

19. The applicant’s second ground criticises the adjudicator for relying on country of origin information that is not officially recognised or hearsay or out of date. The adjudicator found no evidence there is a personal risk that the police would not protect him. He did report Pasang to the police but they found there was nothing for them to do. This is not to say they would not protect him if there were any need to in the future. The adjudicator recognised there was corruption in Nepal from the information he considered but at the same time there was also an active police force and legal system. There is no merit in this ground.

20. I have considered with rigourous examination and anxious scrutiny the papers and grounds of this application. I find the adjudicator’s decision to conduct a paper review to be without fault. He analysed the material, claims and evidence with care. I find no substance in the grounds of this application; the applicant’s grounds and complaints are not made out.

21. I do not find any ground that shows there was an error of law by the adjudicator. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness. The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable. In my judgement, the applicant’s claim is not reasonably arguable.

22.  There is no realistic prospect of success therefore, if my decision to refuse to an extension of time to file this application is wrong, I would have proceeded to refuse leave for judicial review.”

6.  According to the court’s record, the CALL-1 form and the sealed order of the judge were sent by post to the applicant on 9 March 2018.

7.  Pursuant to Order 53 Rule 3(4), the applicant had 14 days to lodge an appeal.  He failed to do so.  By a summons dated 26 March 2018, he applied for an extension of time to appeal.  His application was supported by an affirmation dated 26 March 2018.  In the affirmation, he said he only received the CALL-1 form on 23 March 2018.  He claims that he will suffer hardship if he returns to Nepal. 

8.  On 3 April 2018, the Registrar of Civil Appeals directed that the applicant should lodge 2 sets of written submissions within 14 days after receipt of the directions.  The applicant did not submit any written submissions within 14 days.  On 20 April 2018, the Registrar made the direction that unless the applicant lodges written submissions within 5 days after receipt of that direction, the applicant will be deemed to have no submissions and be barred from lodging any submissions.  The applicant did not lodge any written submissions. 

9.  The applicant failed to provide a satisfactory explanation for his delay in bringing this appeal.  He did not say how he received the CALL-1 form and what caused the delay in receiving it.  Presumably, the applicant had assistance from someone who reads and writes English, as all the documents lodged by him are in English.  He did not give any account of the steps he had taken after he received the CALL-1 Form and the assistance given to him leading to his realization that he was out of time to lodge an appeal.  In the absence of a cogent explanation for the delay, an extension of time should not be granted unless the applicant has a real prospect of success in the intended appeal: see Secretary for Justice v Hong Kong & Yaumati Ferry Co Ltd [2001] 1 HKC 125; Wong Yuk Man v Ng Leung Sing HCMP 3217/2015, 22 January 2016.  The same principle applies in non-refoulement cases: see Re Akram Mohammad HCMP 1601/2016, 10 August 2016; Re Khandakar Ali Muzaman HCMP 2452/2016, 22 November 2016.  

10.  The applicant challenges the Board’s decision not to hold an oral hearing.  The Board has power to determine an appeal without a hearing under section 12 of Schedule 1A of Immigration Ordinance, Cap 115.  As stated in [26] and [37] of ST v Betty Kwan [2014] 4 HKLRD 277, there is no absolute right to an oral hearing, each case would turn on its own facts.  In the present case, the Board accepted the factual basis of the applicant’s claim without reservation (§23).  The Board further considered at §23 whether a hearing would serve any of the purposes identified at [42]-[43] of ST, such as to bring out anything missing from the applicant’s case or to address any point of fact or law.  The Board concluded that the hearing would not serve any of the purposes. 

11.  Having considered the applicant’s case as presented to the Board, we agree with the Board’s assessment that a hearing was unnecessary.  There is no merit in this ground.

12.  On appeal, the applicant did not dispute the judge’s observation that the Director did not file any submissions before the Board.  There was nothing for the applicant to respond to.  Further, the applicant did not give any particulars as to the submissions he wanted to make to the Board.  The applicant failed to show any prejudice he suffered from the lack of opportunity to make further submissions.  This ground is without merit.

13.  The applicant argues that the Board had relied on information that was outdated, not officially recognized or hearsay.  He did not identify the information or explain how the information had misled the Board.  Having read the full decision of the Board (particularly §54), it is plain and clear that the Board had carefully considered the COI.  As this court has repeatedly observed, although the court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of issue at hand, the primary decision-maker is still the Board. Determination of merits of the case is primarily a matter for the Board, whose role will not be usurped by the court. See: Re Zunariyah [2018] HKCA 14, Re Qadir Sher [2018] HKCA 160, Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152, Re Rizwan alias Rizwan Gulistan [2018] HKCA 162, and Re Masoom Parvez [2018] HKCA 163. 

14.  Having considered the case of the applicant in light of the materials before us, we found the finding by the Board and the judge’s observations to be justified. We agree with the judge that leave to apply for judicial review should not be granted.  For these reasons we do not see any prospect of success in the intended appeal.  We would not grant extension of time for a hopeless appeal to be lodged.  The summons of 26 March 2018 is dismissed accordingly.

15.  We are of the view that the application is totally without merit.  Pursuant to Order 59 Rule 2A(8) of the Rules of the High Court, Cap 4A, we make an order that no party may request this determination be reconsidered at an oral hearing inter partes.