RE LAMA BIKASH

CAMP 109/2019

[2020] HKCA 450

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 109 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO. 247 OF 2018)

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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):

INTRODUCTION

1.  By a decision as set out in Form CALL-1 dated 25 January 2019 (“the Deputy Judge’s Decision”) [2019] HKCFI 79, Deputy High Court Judge Bruno Chan (“the Deputy Judge”) refused to grant leave to the applicant to apply for judicial review.

2.  The intended judicial review is to challenge the decision of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (“the Board”) dated 2 February 2018 (“the Board’s Decision) dismissing his appeal against the decisions of the Director of Immigration (“the Director”) dated 1 April 2015 (“the Director’s First Decision”) and 7 June 2017 (“the Director’s Second Decision”).

3.  The Director’s First Decision and the Director’s Second Decision will be referred to collectively as “the Director’s Decisions”.

4.  The applicant issued a summons on 15 February 2019 before the Deputy Judge seeking leave to appeal the Deputy Judge’s Decision out of time.  Pursuant to Order 53 rule 3(4) of the Rules of High Court, the 14-day period for him to lodge such appeal expired on 8 February 2019.  Thus, the application was about 7 days out of time. 

5.  By the decision dated 20 May 2019 [2019] HKCFI 851, the Deputy Judge accepted that the length of delay was not significant but noted that the applicant did not identify any errors in the Deputy Judge’s Decision.  Thus, the Deputy Judge dismissed the summons on the basis that the intended appeal had no reasonable prospect of success. 

6.  The applicant now renews the application for extension of time to appeal the Deputy Judge’s Decision to this Court by way of a summons dated 31 May 2019 (“the Summons”).  

7.  Pursuant to the directions of the Registrar of Civil Appeal given on 3 June 2019, the applicant should lodge his written submissions on 19 June 2019 but he failed to do so.  Having considered the Summons, we take the view that the renewed application can be disposed of on paper without an oral hearing pursuant to Order 59 rule 2A(5)(a) of the Rules of the High Court (Cap 4A).  This is our judgment.

BACKGROUND

8.  The applicant is a national of Nepal.  He entered Hong Kong illegally on 8 December 2014.  On 11 December 2014, he surrendered to the police.  He raised a non-refoulement claim on 14 December 2014.

9.  The details of the applicant’s claim and his personal background were set out in paragraphs 5-6 of the Director’s First Decision, and paragraphs 1-13 of the Board’s Decision.

10.  Briefly stated, the applicant claimed that if he were to return to Nepal, he would be harmed or killed by the Maoist.  The applicant claimed that the Maoist constantly invited him to join them and demanded extortion money since 2005.  He refused and received verbal death threats from the Maoist members.  Out of fear, the applicant left his home village in December 2006.  He then went abroad to Malaysia but eventually returned to Nepal in 2009.  In around September 2011, the applicant opened a café with his two friends, the business of which went well.  One day, a group of 8 to 9 Maoists visited the café and demanded for money.  Initially, the applicant was able to pay them off but he was no longer able to afford after a few times.  Upon his refusal, the Maoists threatened to destroy his café.  To avoid the Maoists, the applicant fled to Hong Kong.

THE DIRECTOR’S DECISIONS AND THE BOARD’S DECISION

11.  By the Director’s Decisions, 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]. The Director’s Second Decision assessed the BOR 2 risk[4].

12.  The applicant appealed the Director’s Decisions to the Board.  After the hearing on 26 October 2017, the Board dismissed the appeal.  The Board found that the applicant’s fear of being forced to join the Maoist was minimal, if existed at all because he admitted that the Maoist had ceased to invite him.  Further, there is no evidence showing that the alleged extortion involved state parties.  Instead, state protection was available to the applicant (paragraphs 23-36 of the Board’s Decision).  As a result, the Board found that the applicant failed to establish a credible claim and dismissed his appeal.

THE DEPUTY JUDGE’S DECISION

13.  On 15 February 2018, the applicant filed his Form 86 for leave to apply for judicial review against the Board’s Decision.  The intended grounds of review were summarized by the Deputy Judge at [11] of the Deputy Judge’s Decision:

“11. On 15 February 2018 the applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation of the same date he mainly copied or repeated various paragraphs from the Board’s decision but from which the following grounds for his intended challenge can be discerned as follows:

(1) that the adjudicator failed to meet the high standard of procedural fairness in that he sought to challenge the applicant’s credibility at the oral hearing;

(2) that the adjudicator failed to maintain a high standard of procedural fairness by taking account of irrelevant considerations in assessing and rejecting his claim.

(3) that the adjudicator failed to give proper reasons for his decision or to give his analysis in concluding that the applicant’s experience in Nepal did not amount to torture or that there were no substantial grounds that he would be subjected to torture if returned to his home country; and

(4) that the adjudicator failed to apply the case and principles of Osborn v The Parole Board [2013] UKSC 61 that procedural fairness requires a fair oral hearing in the consideration of his claim.”

14.  The Deputy Judge heard the applicant on 19 September 2018 and dismissed his application for reasons set out at [12]-[17] of the Deputy Judge’s Decision:

“12. These are however all just broad and vague assertions of the applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Board or the adjudicator had erred in the decision, or what irrelevant consideration did the adjudicator take or in what way did he fail to meet high standard of fairness when assessing his credibility during the oral hearing, or how the adjudicator failed to apply high standard of fairness in assessing his claim, or what relevancy was the case of Osborn to his claim when the adjudicator clearly conducted an oral hearing during which the applicant was able to make representation of his claim with the assistance of an interpreter. None of these assertions were elaborated or presented with any particulars or specifics by the applicant.

13. It is also clearly wrong for the applicant to complain that the adjudicator had failed to give proper reasons or analysis in concluding that his experience in Nepal did not amount to torture or that there were no substantial grounds that he would be subjected to torture if refouled to Nepal, as the adjudicator clearly did do so in paragraphs 25 and in 31 – 36 of his decision, and on the basis of the evidence and information available he was certainly entitled to arrive at such evaluation of the applicant’s claim.

14. As it has been repeatedly emphasized by the Court of Appeal that evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality being clearly and properly identified by the applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Re Litoun Mounsy [2018] HKCA 537.

15. Further, the fact is that it has been established by both the Director and the Board in their respective decisions that the threats from those Maoists in Kathmandu were essentially criminal acts from which state and police protection would be available to the applicant, whilst it was also correctly found by the Director that such risk is a localized one and that it is not unreasonable or unsafe for the applicant to relocate to other part of Nepal, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526.

16. In the premises and having proceeded to consider the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the applicant’s claim.

17. For these reasons I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and I accordingly refuse his leave application.”

DISCUSSION

15.  By way of the Summons, the applicant asked for an extension of time to file the Notice of Appeal.  In his supporting affirmation, he argued that the Deputy Judge erred in concluding that the Board acted fairly and that the Deputy Judge failed to conduct sufficient inquiries.

16.  This court has a discretion to extend time to appeal out of time.   The court however will only consider whether to do so after taking into matters such as (1) the length of delay, (2) the explanation of the delay, (3) the merits of the intended appeal, and (4) the prejudice to the respondent is time to appeal is extended.  See: Re MA [2019] HKCA 1020, at [14]-[15].

17.  In our view, this application is without merits.

18.  First, a delay of 7 days is not insignificant in the context of an only 14-day statutory appeal period as provided by the rules.

19.  Second, the applicant has not provided any explanations for the delay.

20.  Third, there is plainly no merit in the intended appeal.  

21.  The relevant principles regarding appeals on non-refoulement cases have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at paragraph 14.  They can be summarized as follows.

22.  An appeal against the refusal of leave by a judge in the Court of First Instance is not an occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but were not raised before the judge.  In determining an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse that decision if an appellant can demonstrate that the judge has made errors of law or failed to take into account of relevant matters already placed before the court or was otherwise plainly wrong.

23.  Further, in an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant.  If no viable ground is put forward to reverse the judge, the appeal should be dismissed.  It is not the role of the Court of Appeal to examine the decision of the Board afresh as if it is a fresh application for judicial review.  Otherwise, an applicant could flagrantly disregard the time limit in Order 53, rule 4(1) of the Rules of the High Court (Cap 4A).

24.  In light of the above, it is thus incumbent on the applicant to point out with sufficient particularity the errors allegedly committed by the Deputy Judge in the Deputy Judge’s Decision.

25.  However, the applicant’s complaint in the intended appeal that the Deputy Judge had failed to conduct sufficient inquiries is nothing but a general, unparticularised and unsubstantiated assertion.  At [12]-[17] of the Deputy Judge’s Decision, the Deputy Judge had explained in detail his reasons for finding that the Board had acted fairly and for rejecting the applicant’s purported challenge.   The applicant in this application has however singularly failed to provide any particulars as to which aspects of his grounds of review or submissions he says the Deputy Judge had allegedly failed to sufficiently inquire into. 

26.  The applicant’s complaint regarding the Deputy Judge’s Decision is therefore not a viable ground of appeal.  The intended appeal is plainly without any merits. 

27.  For these reasons, we will refuse to extend time for the applicant to appeal, and dismiss the Summons accordingly.