RE DILIP KUMAR RAI

CAMP 66/2021

[2021] HKCA 1274

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 66 OF 2021

(ON AN INTENDED APPEAL FROM HCAL 2836/2018)

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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 Deputy High Court Judge KW Lung given on 30 July 2020 refusing 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 (“Board”) dated 30 November 2018 dismissing the applicant’s appeal against the decision of the Director of Immigration (“Director”) dated 11 August 2017 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Nepal. He entered Hong Kong on 18 January 2005 as a visitor and was permitted to remain until 21 January 2005. He overstayed and was arrested on 14 July 2008. He was convicted of the offence of breach of condition of stay by overstaying on 30 July 2008 and was sentenced to 3 months of imprisonment. He lodged a non-refoulement claim on 18 August 2008.

3.  The applicant’s claim was based on threats from people claiming to be members of the Maoist party in Nepal. The details of the applicant’s claim have been summarised by the judge at [13] of the CALL-1 Form.

4.  By a Notice of Decision dated 23 March 2015 (“the Director’s First Decision”), the Director decided against the applicant’s claim. The Director’s First Decision covered the BOR 3 risk^[1], the persecution risk^[2] and the torture risk^[3].

5.  The applicant appealed to the Torture Claims Appeal Board. After a hearing on 26 July 2016, the Board dismissed the appeal on 19 April 2017 (“Board’s First Decision”).

6.  At [24] of the Board’s First Decision, the Board accepted that the applicant had a dispute with people claiming to be Maoists but found that it was a private matter. At [38], the Board did not accept that the Maoists would target the applicant 12 years after the incident or that they would be looking for the applicant upon the applicant’s return. The Board did not accept that the applicant faced any of the proscribed risks of harm under consideration. The Board also found at [56] that there was nothing to suggest that state protection would not be available for the applicant.

7.  By a Notice of Further Decision dated 11 August 2017, the Director also assessed the applicant’s claim based on the BOR 2 risk^[4], and decided against him.

8.  The applicant again appealed to the Torture Claims Appeal Board. After a hearing on 16 April and 20 July 2018, the Board dismissed the appeal on 30 November 2018 (“Board’s Second Decision”).

9.  At [23] of the Board’s Second Decision, the Board found that the evidence offered by the applicant was not credible. The Board did not accept that the applicant would face BOR2 risk upon his return.

The judge’s decision

10.  The applicant filed a Form 86 on 11 December 2018 which contained no ground for seeking relief.

11.  In his affirmation in support of the leave application filed on the same day, the applicant advanced the following grounds for judicial review, as summarized by the judge at [18] of CALL-1 Form:

(1) the applicant did not have the benefit of legal representation for the application;

(2) the Board was biased and dismissed his case on credibility, relying on some inconsistencies to wipe off his whole case; and

(3) the Board’s decision was not translated to him and it was procedurally unfair.

12.  After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the judge refused to give leave for judicial review. The judge gave the following reasons in refusing leave to apply for judicial review at [19] to [24] of the CALL-1 Form:

“19. The applicant appeared before me and confirmed that he was able to express himself freely before the immigration officer and the Board.

20. The Court of Appeal had held in Re: Ahmed Syed Rafiq [2018] HKCA 178, 26 March 2018 §22 that the applicant is not entitled to free legal representation at every stage of the proceedings. He had already had free legal representation at the screening stage and the hearings before the Board. Ground (1) fails.

21. Ground (2) is his opinion. He did not challenge the findings of inconsistencies in his evidence by the Board. Whether the inconsistencies are significant is a matter for the Adjudicator to determine as he is the fact finding adjudicator. This ground fails.

22. The Court of Appeal held in Re Sharma Poonam [2019] HKCA 804, 19 July 2019 that high standards of fairness did not require translation for the applicant at any stage of the proceedings. Ground (3) fails too.

23. The applicant fails to show that he has any reasonable prospect of success in his proposed judicial review.

CONCLUSION

24. Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant him leave to apply for the intended judicial review. Accordingly, I dismiss his application.”

Application for extension of time to appeal and grounds for appeal

13.  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 7 October 2020, the applicant sought leave to appeal out of time. His application was dismissed by DHCJ P Li on 23 February 2021.

14.  By a summons filed on 4 March 2021, the applicant applied to set aside the order of DHCJ P Li on 23 February 2021. The applicant did not put forward any ground of application in the summons.

15.  In the affirmation filed on the same day, the applicant deposed that:

(1) the “Deputy Judge” (understood to refer to DHCJ P Li) made a biased and erroneous judgment;

(2) the lack of language and legal assistance affected his ability to understand the letter from court and the legal rules. As a result, the applicant was unable to bring the intended appeal within time;

(3) because of the lack of language and legal assistance, the applicant did not understand what he should say in the oral hearing before the judge about his complaints against the Director and the Board;

(4) the applicant called the court and was told that there was no time limit for lodging the appeal; and

(5) the applicant was not able to find errors in the decisions by the Board and the Director, or elaborate on the grounds in his affirmation, because he did not have legal or language assistance.

16.  In his skeleton submissions lodged on 5 May 2021, the applicant reiterated the matters raised in his affirmation. Although he initially referred to a decision of DHCJ Bruno Chan dated 5 January 2021 which appears to have no relevance to his claim, he also referred to [19] of the decision of DHCJ P Li’s decision dated 23 February 2021 where the judge held that “the applicant was represented during the oral hearings by the Duty Lawyer Scheme. He should have sufficient assistance in the proceedings” and submitted that the judge did not take into account his actual unique circumstances and his decision was therefore Wednesbury unreasonable. He also submitted that the judge was wrong in failing to recognize the lack of language and legal assistance suffered by the applicant. Lastly, the applicant submitted that “the fact that there are no other [avenues] for a non-refoulement claimant to seek an appeal against a decision made purely against credibility is procedurally unfair”.

Discussion

17.  Having considered the papers, we are satisfied that this application can properly be dealt with on the papers without an oral hearing pursuant to Order 59 Rule 14A.

18.  In cases where (like the present case) the judge refused to grant extension of time to appeal, the proper application for an applicant to make is to renew such application before this court instead of appealing against the refusal to grant extension of time: see Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104. We shall therefore treat the application in the summons dated 4 March 2021 as a renewed application for extension of time to appeal.

19.  We would deal with the issue of delay first. This court has repeatedly held that ignorance of the law on the part of the applicant is not a reasonable excuse for the delay. Further, it is inconceivable that a member of the staff of the Judiciary would advise the applicant that there was no time limit to bring an appeal and the applicant was not able to provide any particulars to substantiate this allegation. We are of the view that the applicant has not provided any reasonable explanation for his delay in bringing the intended appeal.

20.  We nonetheless go on to consider the merits of the intended appeal.

21.  The applicant advanced a number of grounds based on the lack of legal representation. This court has repeatedly held that a non-refoulement claimant is not entitled to legal representation at all stages of the proceedings (Re Zahid Abbas [2018] HKCA 15). Representation at later stages is merits based, and this is not procedurally unfair.

22.  As for the complaints based on the lack of language assistance, we note that the applicant has admitted that he has access to language assistance and he was able to provide court documents in English. He identified the alleged errors committed by the judge and made submissions on those alleged errors. We are not satisfied that the applicant suffered any real prejudice from the alleged lack of language assistance.

23.  As for the rest of the grounds of appeal, they lack particulars and are therefore not reasonably arguable. We therefore do not see any prospect of success in the intended appeal. We will not grant extension of time for a hopeless appeal. The summons of 4 March 2021 is dismissed accordingly.