RE LIMBU RAJ KUMAR

CACV 426/2018

[2018] HKCA 927

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 426 OF 2018

(ON APPEAL FROM HCAL NO. 679 of 2017)

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JUDGMENT

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

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge Josiah Lam (“the Judge”) given on 13 August 2018 refusing him leave to apply for judicial review.  The intended judicial review is against the decisions of the Director of Immigration (“the Director”) dated 16 February 2015 and 9 January 2017 rejecting his non-refoulement claim and also the decisions of the Non-refoulement Claims Petition Office / Torture Claims Appeal Board (“the Board”) dated 2 December 2016 and 24 August 2017 dismissing his appeals against the Director’s two decisions.  The applicant consents to the appeal being determined on paper without an oral hearing. 

2.  On 5 September 2018, the Registrar of Civil Appeals directed the applicant to lodge his written submission by 21 September 2018, but he did not do so.  We take it that the applicant does not wish to lodge any written submission, and have proceeded to consider the appeal based on the available materials before us.       

3.  The applicant is a Nepali national, who entered Hong Kong illegally.  On 1 June 2009, he surrendered to the Immigration Department and lodged a non-refoulement protection claim based on his fear of being harmed or killed by members of a political party called Limbuwan.   

4.  In brief, the applicant’s case is that because he refused to join their party, the Limbuwan people often harassed, threatened and assaulted him.  He had sustained some minor injuries.  He did not make any report to the authorities whom he considered were corrupt and ineffective. Fearing for his safety, he left his village and went to live in Kathmandu.  He eventually went to mainland China, from where he came to Hong Kong. 

5.  By a Notice of Decision dated 16 February 2015, the Director rejected the applicant’s non-refoulement claim having regard to the torture risk[1], the BOR 3 risk[2] and the persecution risk[3].  On 2 March 2015, the applicant appealed the Director’s decision to the Board.  An oral hearing was held on 1 February 2016, during which the applicant elected to remain silent.  By its decision dated 2 December 2016, the Board dismissed the appeal. 

6.  By letter dated 19 December 2016, the Director invited the applicant to provide additional information relevant to a BOR 2 risk[4] assessment. The applicant responded by letter dated 3 January 2017.  By a Notice of Further Decision dated 9 January 2017, the Director decided against the applicant in respect of the BOR 2 risk ground.  The applicant appealed the Director’s further decision to the Board.  The Board decided that an oral hearing was not necessary and proceeded to consider the appeal on paper.  By its decision dated 24 August 2017, the Board dismissed the appeal. 

7.  The applicant filed his Form 86 on 26 September 2017 seeking leave to apply for judicial review against all the decisions of the Director and the Board.  The Judge listed the application for hearing on 14 June 2018, which was adjourned to 11 July 2018 to enable the applicant to provide particulars of the grounds for judicial review.  At the adjourned hearing, with the assistance of the Court Interpreter, his written grounds were translated into English.  

8.  For reason given in [14] of the Form CALL-1 dated 13 August 2018, [2018] HKCFI 1843, the Judge extended the time for applying for leave to judicially review the two decisions of the Director and the first decision of the Board.  The Judge, however, refuse to grant leave to apply for judicial review and he considered the intended judicial review was not reasonably arguable and had no prospect of success.  In [30] to [34] of the Form CALL-1, he set out the applicant’s grounds for judicial review and his reasons for rejecting them as follows:

“30. The Applicant complained the Director and the Adjudicator refused his application too quickly. There were no particulars given.

31. I note that the Director and the Adjudicator each interviewed the Applicant once. They held no further hearing on the BOR2 risk issue.

32. There was indeed no need for the Director or the Adjudicator to hold further interview simply on the BOR2 risk issue. The submission made by the Applicant in his letter to the Director dated 3 January 2017 contained no additional facts or information. The Applicant's case remained the same. The Director and the Adjudicator were therefore entitled to continue to assess the Applicant's claim on the available information before them. There was really no need to hold further hearing simply on BOR2 risk. The Applicant had been given reasonable and sufficient opportunities by the Director and the Adjudicator to state and elaborate his case. There is no evidence that the Director or the Adjudicator had hurried themselves in the screening process. Each had engaged in proper joint endeavour with the Applicant in the inquiry.

33. The Applicant complained the decisions against him were unfair and erroneous.

34. I have reviewed the Director's decisions and the Adjudicator’s decisions under ‘rigorous examination and anxious scrutiny’.  The reports of the Director and the Adjudicator showed they were acquainted with the facts and the law.  They considered the Applicant's case carefully and applied the law correctly.  I am satisfied the Director and the Adjudicator had proper basis for their findings, conclusions and decisions which were not Wednesbury unreasonable.  They made no errors of law and there was no procedural unfairness.  There is no substance in the Applicant’s complaints against the Director or the Adjudicator.  The Director and the Adjudicator had achieved the high standards of fairness required of the Applicant’s non-refoulement claim.”  

9.  In the Notice of Appeal filed on 30 August 2018, the applicant gave the following as his ground of appeal:

“[T]he Order of High Court Judge Josiah Lam was unfair and wrong. The application has a realistic prospect of success. There is an arguable case. Therefore, leave to Judicial Review should be granted.”

10.  In the affirmation filed on the same day as the Notice of Appeal, the applicant reiterated that the Judge’s decision was unfair and unreasonable.  He also said that he did not appeal in time because he was not aware he had to appeal within a certain period, and he came to know this after seeking legal advice.

11.  The ground of appeal has no substance.  No particulars have been provided for the assertion that the Judge’s decision was unfair or wrong. As to the explanation in the affirmation about the appeal being brought out of time, this is mistaken.  The present appeal was brought within the time limit.

12.  The applicant has not set out any basis for this Court to disturb the decision of the Judge.  The appeal is unarguable, and is accordingly dismissed.