RE GURUNG GANGA KUMARI

CAMP 489/2022, [2024] HKCA 1152

On Appeal From [2022] HKCFI 2526

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 489 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 666 OF 2019)

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J U D G M E N T

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

1.  By a summons filed on 23 November 2022, the applicant reapplied to this court for extension of time to appeal against the order made by Deputy High Court Judge KW Lung (“the Deputy Judge”) dated 24 August 2022 refusing her application for leave to apply for judicial review ([2022] HKCFI 2526) (“the Leave Decision”).  By a subsequent judgment dated 20 October 2022, the Deputy Judge refused the applicant’s application for extension of time to appeal against the Leave Decision ([2022] HKCFI 3014) (“the EOT Decision”).

2.  The intended judicial review was directed at the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”) dated 1 March 2019 (“the Board’s Decision”), dismissing the appeal against the decision of the Director of Immigration (“the Director”) dated 3 January 2018 rejecting her claim for non‑refoulement protection (“the Director’s Decision”).

3.  Having considered the paper, we are of the view that it is appropriate to determine this application without a hearing under Order 59, rule 14A of the Rules of the High Court, Cap 4A (“the RHC”).

Background

4.  The applicant is a national of Nepal.  She previously worked as a foreign domestic helper and was granted permission to stay till 12 October 2007.  However, her employment contract was prematurely terminated on 26 September 2007.  Her limitation of stay as a visitor was last extended till 1 December 2007.  She overstayed since 2 December 2007.  Over eight years later, on 13 May 2016, she surrendered herself to the Immigration Department.  On 19 September 2016, she lodged a non‑refoulement claim on the basis that, if refouled, she would be harmed or killed by a loan shark Purna and a gang leader Rajiv Gurung hired by Purna because she failed to repay a loan, and the gang leader was hired for collection of the unsettled debt under the loan. Factual details of the applicant’s claim were summarised by the Deputy Judge at [4] ‑ [5] of the Leave Decision.

5.  By the Director’s Decision, the Director rejected the applicant’s non-refoulement claim.  His decision covered all applicable grounds including BOR2 risk[1], BOR3 risk^[2], persecution risk^[3], and torture risk^[4].

6.  The applicant then appealed against the Director’s Decision to the Board.  On 7 December 2018, she attended an oral hearing before the Board and gave evidence.  On 1 March 2019, the Board dismissed her appeal and confirmed the Director’s Decision.  In essence, the Board found that the applicant’s story of receiving threats of death or ill-treatments from the creditor due to the non-repayment of the loan did not have any objective support[5].  Having assessed the available evidence, the Board considered that her story was implausible[6].  The Board also noted that the involvement of the gang members was based on hearsay information[7].  Even taking her claim to the highest, the loan dispute was a private dispute without state involvement[8]. In any event, the Board found that both state protection and internal relocation would be available to her upon refoulement[9].  Accordingly, the Board considered that the applicant would not face any real risk of serious harm or ill-treatment upon refoulement and dismissed her appeal.

The Leave Decision

7.  On 8 March 2019, the applicant filed a Form 86 together with a supporting affirmation to apply for leave to apply for judicial review against the Director’s Decision.  Given the Director’s Decision was not amenable to judicial review, the applicant’s intended judicial review was rightly considered by the Deputy Judge as challenging against the Board’s Decision instead of the Director’s Decision: Re Moshsin Ali [2018] HKCA 549 at [31] ‑ [45].

8.  No ground of review was given in the Form 86.  In her supporting affirmation, the applicant merely stated that the Immigration Department disregarded the danger and threats she would face if refouled.  As the applicant did not request any oral hearing, the Deputy Judge considered her application on paper.

9.  By the Leave Decision, the Deputy Judge dismissed the applicant’s application for leave to apply for judicial review.  His reasons were set out in detail at [12] ‑ [17] of the Leave Decision:

“12. The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.

13. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

14. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

‘13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.’

15. The Board had considered the merits of the applicant’s case and given reasons in support of its conclusion. The application has not raised any valid ground to challenge the Board’s Decision.

16. The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

17. The applicant fails to show that she has any realistic prospect of success in her proposed judicial review.”

The EOT Decision

10.  Under Order 53, rule 3(4) of the RHC, the applicant may appeal against the Leave Decision to the Court of Appeal within 14 days of the order.  No notice of appeal was filed by the applicant within the 14‑day period.

11.  On 16 September 2022, the applicant filed a summons together with a supporting affirmation for extension of time to appeal against the Leave Decision.  By then, she was two days late with her intended appeal[10].  In her summons and supporting affirmation, she contended that she did not receive the order timely.

12.  By the EOT Decision, the Deputy Judge dismissed the applicant’s application for extension of time to appeal, holding that she had failed to show she had a realistic prospect of success in her intended appeal.

The Present Application

13.  By a summons and supporting affirmation both filed on 23 November 2022, the applicant reapplied for extension of time to appeal against the Leave Decision.  In her summons and supporting affirmation, the applicant claimed that her problems were severe in her home country and she would be killed by her enemy upon her refoulement.

14.  Pursuant to the directions made by the Registrar of Civil Appeals on 23 November 2022, the applicant lodged her written submissions on 28 November 2022.  Her arguments in those submissions could be summarised as these: (a) the Deputy Judge failed to apply the principle of irrationality; (b) the Deputy Judge failed to review the Board’s Decision in light of “high standard of fairness”; (c) the Deputy Judge failed to apply the principle of procedural unfairness; (d) the Deputy Judge failed to give greater care to the proof submitted by the applicant; (e) the Deputy Judge did not analyse the applicant’s claim properly; (f) the Board failed to give sufficient chance to the applicant to arrange evidence; and (g) the Board relied on outdated source of news.  She also requested this court to give her time to submit further documents.

Discussion

15.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the Court will have regard to: (a) the length of delay; (b) the reasons for the delay; (c) the prospect of success of the intended appeal; and (d) the prejudice to the putative respondent if extension of time was granted: Re Rahman Wasif [2019] HKCA 299 at [13].

16.  Since a delay of two days in taking out her application for extension of time to appeal is not substantial, for present purposes, we will focus on the merits of her application.

17.  The general approach in dealing with appeals in non‑refoulement claims is set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  In particular, in assessing the merit of an intended appeal, this court will focus on the Leave Decision and will only consider reversing that decision if an applicant can demonstrate that the Deputy Judge made errors of law or failed to take account of relevant matters already placed before the Court or was otherwise plainly wrong: Sakatter Singh v Director of Immigration [2021] HKCA 1490 at [15].  General and bare assertions without any specific particulars are not proper grounds of appeal: Re Farrukh Zaib [2020] HKCA 408 at [28].

18.  As a start, general and bare assertions on the applicant’s fear if refouled to her home country do not constitute valid grounds of appeal.  The arguments raised in her written submissions are new and not raised in the Court below.  It is well established that this court will generally not entertain new arguments which are fact and evidence sensitive and have not been canvassed in the Court of First Instance and for which leave has not been sought within time: Nupur Mst v Director of Immigration, supra, at [14]; and Re Gurpreet Singh [2021] HKCA 1740 at [15].  Further, the applicant’s contentions are all general and bare assertions without any specific particulars or evidence in support.  They also do not constitute proper grounds of appeal and we refuse to entertain those arguments.  The intended appeal must fail on this basis alone.

19.  In any event, as repeatedly emphasised by the Court of Appeal, it is well-established that the assessment of evidence, country of origin information and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director) as primary decision makers.  The Court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board: Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  As correctly held by the Deputy Judge, there was no error of law or irrationality or procedural unfairness in the proceedings before the Board.  We see no basis to interfere with the Leave Decision.

20.  For the above reasons, the intended appeal has no prospect of success.  It will be futile to extend time.  The application for extension of time to appeal is therefore refused and the applicant’s summons filed on 23 November 2022 is dismissed.