SHERPA NIMA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 523/2022, [2023] HKCA 712

On appeal from [2022] HKCFI 2455

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 523 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 1060 OF 2019)

________________________

________________________

_______________

J U D G M E N T

_______________

Hon Kwan VP (giving the Judgment of the Court):

Background

1.  On 9 August 2022, Deputy High Court Judge K W Lung refused to grant leave for the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning his non-refoulement claim[1].

2.  On 16 September 2022, the applicant filed a summons to apply for extension of time to appeal against that decision at the Court of First Instance. The summons was dismissed by the judge on 20 October 2022[2].

3.  On 8 December 2022, the applicant filed the present summons seeking to appeal against the court’s decision. This application should be treated as a renewed application for extension of time to appeal against the judge’s decision of 9 August 2022 (Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at §§3 to 8).

4.  The applicant is a national of Nepal. He entered Hong Kong on 9 December 2014 as a visitor and subsequently overstayed. He surrendered to the Immigration Department on 10 July 2015. On 16 November 2015, he lodged a non-refoulement claim on the basis that, if refouled, he would be harmed or killed by his job agent who was a member of the Maoist Group.

The decisions of the Director and the Board

5.  By a Notice of Decision dated 30 April 2018, the Director of Immigration (“the Director”) rejected the applicant’s claim on all applicable grounds including torture risk[3], BOR 2 risk[4], BOR 3 risk[5] and persecution risk[6].

6.  The applicant appealed against the Director’s decision to the Board. He attended the hearing before the Board on 21 March 2019. The Board considered that the applicant’s allegation that the Maoist Group was a terrorist party was not true as a peace agreement was signed between the Nepalese government and the Maoists in November 2006, ending 10 years of conflict in Nepal and, in recent years, the Maoist party has been elected as head of Nepal’s coalition government and steps have been taken to dismantle its apparatus for the conduct of terrorist operations. The Board further found that the alleged threats through phone calls were just empty threats and the applicant conceded that there was no other form of threats. The Board also assessed that state protection and internal relocation alternatives will be available to the applicant upon his return to Nepal. The Board concluded that the applicant’s claim failed on all applicable grounds and dismissed the appeal on 12 April 2019.

The intended judicial review

7.  On 18 April 2019, the applicant filed a Form 86 and an affirmation in HCAL 1060/2019 to seek leave to bring judicial review against the Board’s decision. He stated that the Immigration Department did not take into consideration the danger and threats he would face in his country.

The judge’s decision

8.  DHCJ K W Lung dealt with the application on paper as the applicant did not request for an oral hearing. The judge found that the applicant does not have any valid ground to challenge the Board’s decision. The judge considered there is no error of law or procedural unfairness in the Board’s decision. As there is no realistic prospect of success in the applicant’s intended judicial review, the judge refused the leave application on 9 August 2022.

Grounds of intended appeal

9.  The applicant stated his grounds of appeal in the written submissions which may be summarised as follows:

(1)  The judge was wrong as a matter of law for not having applied the principle of irrationality to the decision made by the Director and the Board;

(2)  High standards of fairness are required in the determination of a torture claim on the part of the decision maker but the judge reviewed the matter lightly;

(3)  The judge was wrong as a matter of law for not having applied the principle of procedural unfairness to the decision of the Director whereby the Director and the adjudicator were required to give reasons justifying their decisions;

(4)  The applicant’s problems are very severe in his home country and he has submitted all the proofs but the judge has not applied greater care and disappointed the applicant;

(5)  The judge may not have properly analysed the applicant’s claims;

(6)  The adjudicator has failed to give sufficient chance for the applicant to arrange relevant evidence to support his non-refoulement claims as well as his appeal;

(7)  The applicant will face hardship if he returns to his home country and the Board has significantly relied on the source of news which is not officially recognized, or is simply hearsay;

(8)  The adjudicator failed to evaluate and make a finding of fact as to whether there is a consistent pattern of gross and mass violation of human rights in Nepal;

(9)  The adjudicator failed to analyse and assess whether state protection exists in Nepal and misdirected himself as to the extended meaning of state protection.

Analysis and disposition

10.  In considering whether to extend time to appeal against a decision refusing leave to apply for judicial review, the court will take into account: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted.

11.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court, Cap 4A, the applicant may appeal to the Court of Appeal against the judge’s order refusing leave within 14 days after such refusal. The order was made on 9 August 2022 and the applicant was late by 2 days[7] when he took out the summons at the court below on 16 September 2022, exclusive of the court’s summer vacation in August. He explained that he did not receive the decision from the court by post.

12.  As the delay here is merely 2 days, we will focus on the merits of the intended appeal, which is the crucial consideration in this application[8].

13.  The general principles regarding an appeal in a non‑refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

14.  The applicant’s grounds in his written submissions were not raised in his previous application at the court below. These new grounds should not be entertained as an appeal is not the occasion for an applicant to introduce new grounds after the original grounds failed at the court below[9].

15.  In any event, the applicant’s grounds are just bare assertions without evidence in support or contrary to the facts. In particular, the Board has given detailed analysis based on the country of origin information in assessing the availability of state protection in Nepal. The applicant failed to adduce any evidence to refute the Board’s findings. Furthermore, he failed to give any particulars or evidence to establish that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong in the decision.

16.  We agree with the judge there is no reasonable prospect of success in the intended appeal. We refuse to extend time to appeal against the judge’s decision of 9 August 2022. The summons filed on 8 December 2022 is dismissed.