RE NAV RAJ MANANDHAR

CAMP 316/2019

[2020] HKCA 390

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 316 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO. 319 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 renewed application for leave to appeal out of time against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) given on 13 June 2019 refusing him leave to apply for judicial review. The applicant’s previous application for leave to appeal out of time was refused by the Judge on 17 December 2019.

2.  The applicant had filed an affirmation and also lodged a written submission in support of his application.

3.  Under Order 59 rule 14A(1) of the Rules of the High Court, Cap. 4A, this Court may determine an application for extension of time to appeal without an oral hearing.  Having considered the summons and the affirmation filed by the applicant, we are of the view that it is appropriate to determine the present application on paper without a hearing.

4.  The applicant’s intended judicial review is against the decision of the Director of Immigration (“the Director”) dated 13 January 2017 rejecting his non-refoulement claim and the Torture Claims Appeal Board (“the Board”) dated 19 May 2017 dismissing his appeal against the Director’s decision.

5.  The applicant is a Nepalese national.  He entered Hong Kong on 4 August 2007 and was given permission to remain as a dependant of his father.  The permission to stay was last extended to 21 August 2015.  Between September 2013 and September 2016, the applicant on three occasions was convicted of various criminal offences and sentenced to custodial sentences.  After his last discharge from prison, he was detained at Castle Peak Bay Immigration Centre. 

6.  In July 2015, the applicant raised a non-refoulement claim based on his fear of being (i) harmed or killed by a man named Suman and members of the Young Communist League (“YCL”) in his college over a political dispute; and (ii) arrested by the police over a fighting incident which resulted in the death of two members of the YCL.  The applicant’s claim was detailed in the Director’s decision at [6]. 

7.  In gist, the applicant said that he was the chairman of the student union in his college, which was supported by the Congress Party.  During a political event of the student union in mid-2006, Suman came with 30 to 40 YCL members and demanded to suspend the event.  A fight broke out between the YCL members and members of the student union, resulting in the death of two YCL members.  The applicant was wanted by the police and the YCL members were also after him.  The applicant left home and went into hiding at Kaski Pokhara for four months and then at Kathmandu for three months.  On his parents’ suggestion he came to Hong Kong in August 2007. The applicant was informed by his friends that the YCL people were still looking for him and would harm him if he were to return to Nepal.     

8.  By his decision of 13 January 2017, the Director rejected the applicant’s claim on all applicable grounds, namely, the torture risk[1], BOR 3 risk[2], BOR 2 risk[3] and persecution risk[4] grounds.

9.  The applicant’s appeal to the Board was heard on 28 April 2017.  By its decision dated 19 May 2017, the Board dismissed the appeal.  Primarily, the Board did not accept the applicant’s account, and found his assertion of being pursued by the YCL to be dubious and unreliable.  The Board also found there was no good reason why the Nepali police were/are pursuing the applicant.

10.  On 22 June 2017, the applicant filed a Form 86 in the action below (i.e. HCAL 319/2017) to apply for leave to judicially review both the Director’s and the Board’s decisions.  No ground for seeking relief was set out in the Form 86.  In the supporting affirmation, the applicant merely stated that his non-refoulement claim was true and that he was applying for a judicial review because his claim had been rejected by the Director and the Board.  He did not request an oral hearing.

11.  On 6 October 2017, when the application was pending, the applicant filed a second Form 86 in HCAL 733/2017 (“the 2^nd Application”) to apply for leave to judicially review the decision of the Board only.  He raised three grounds to support the application. The 2^nd Application was outside the three months’ period for bringing judicial review.  On 11 June 2018, Deputy High Court Judge Woodcock (“DHCJ Woodcock”) refused to extend the time for the applicant to apply for judicial review and dismissed the application.[5]  Principally, the judge considered that the delay was not insignificant, and the applicant had provided no explanation for the delay.  The judge also observed that there were no merits in the intended application.  The applicant had not appealed against DHCJ Woodcock’s decision.

12.  By a Form CALL-1 dated 13 June 2019[6], the Judge refused the applicant’s application in the action below.  He set out his reasons at [6] to [9] as follows:   

“6. In the premises the principle of res judicata applies to the present application now before me, and although it was made first in time and, unlike his second Form 86 it was not out of time, as noted above Judge Woodcock did already consider the merits of his substantive application in her decision when she stated as follows:

‘7. In any event, I did consider the applicant’s affirmation and found no substance in the grounds of his application. The adjudicator’s decision was without fault; she carefully considered and analysed his evidence and claim. She rejected his appeal/petition because she did not believe his claim. She did not believe he was a genuine claimant. She rejected his evidence that he was the chairman of his student union of his college. She did not believe that he had been chosen as the chairman by the Congress Party of Nepal which supported that student union.

8. The adjudicator also gave full and careful reasons for rejecting his evidence that he was being pursued by the youth wing of the Communist Party of Nepal as well as being a wanted man by the Nepalese police. She concluded that he was at no risk of personal harm if he returned to Nepal. She found that the applicant was unsuccessful in showing he was at risk of torture, unable to invoke the protection of BOR 2 or BOR 3 and could not prove a persecution risk for the purpose of a non-refoulement protection claim. The adjudicator confirmed the decisions of the Director.

9. The applicant’s grounds were weak, without substance and without merit. Even if there had been no delay or that an extension of time had been granted, the applicant’s claim is not reasonably arguable. There is no realistic prospect of success. There was no error of law by the adjudicator nor any evidence of procedural unfairness nor a failure to adhere to a high standard of fairness. The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable. I would have refused leave for judicial review.’

7. As for his intended challenge against the Director’s decision in his first Form 86, the Court of Appeal has already held in Re Moshsin Ali [2018] HKCA 549 that the decision of the Director has been superseded by the Board’s decision once a non-refoulement claimant has pursued an appeal to the Board, and that the Director’s decision is therefore no longer susceptible to judicial review.

8. Had that application been brought before me earlier back in 2017 before he filed his second Form 86, in the absence of any reasonably arguable ground being put forward by the applicant or any legal error or procedural unfairness being shown in either decisions of the Director or the Board, I would have reached the same conclusion as DHCJ Woodcock that there were simply no merits or substance in the applicant’s intended application.

9. In the premises and for the reasons given, high standard of fairness does not entitle the applicant to proceed with this application albeit that it was filed first in time and within time, and accordingly it is hereby dismissed.”

13.  The 14-day period for the applicant to appeal the decision of the Judge, as stipulated by Order 53 rule 3(4) of the Rules of the High Court, expired on 27 June 2019.  On 27 September 2019, the applicant filed a summons together with an affirmation to apply for leave to appeal out of time.  The Judge heard the application on 8 November 2019, and by his decision handed down on 17 December 2019[7] dismissed the application.  On 19 December 2019, the applicant filed the present summons and an affirmation in this Court to renew his application for leave to appeal out of time.

14.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the Court will have regard to: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of success of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted: see: Chee Fei Ming v. Director of Food and Environmental Hygiene [2015] 4 HKC 134; and also Wong Yuk Man v. Ng Leung Sing & Anor [2016] HKCU 157 (HCMP 3217/2015, 22.01.2016). 

15.  The applicant was late by three months, which is substantial.  In the affirmation, the applicant explained that he was in custody, and did not receive any correspondence from the court regarding the dismissal of his application.  He also said that as he was unrepresented, he was unaware of the 14-day time limit.  We note that the Judge accepted that the applicant was in custody at the time of the decision dismissing his application.  In the circumstances and considering that the applicant did not have access to legal assistance, we are prepared to accept his explanation for the delay.  In any event, the crucial factor in determining whether the Court should exercise its discretion to grant an extension of time for appeal is the prospect of success of the applicant’s intended appeal: Re MK (unreported) HCMP 2609/2016, Islam Raja Rais v. Director of Immigration (unreported) HCMP 881/2017, and Re Gurung Min Bahadur [2018] HKCA 226. 

16.  The applicant did not provide any draft grounds of appeal for his intended appeal.  In his written submission, the applicant made the following points:

(1)  The high standards of fairness as laid down in Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289 must be observed in the determination of a torture claim. 

(2)  As held in ST v Director of Immigration[8] [2014] 4 HKLRD 277, high standards of fairness are required having regard to the fact that the applicant’s life is in jeopardy, his fundamental right not to be subjected to torture is at stake and the decision has the effect of finally disposing of the applicant’s claim rendering him liable to be removed. 

(3)  The Board acted in a procedurally unfair manner in dealing with the applicant’s appeal without properly assessing his credibility.

(4) The decision of an administrative body exercising discretionary decision-making functions is liable to set aside if it is Wednesbury unreasonable.

(5) Under section 37ZT of the Immigration Ordinance, in considering the late filing of notice of appeal, the Board may only take into account the reasons for delay stated in the notice of appeal and the accompanying supporting evidence, and any other relevant matters of fact within the knowledge of the Board.

17.  In an appeal to the Court of Appeal, the focus is the correctness of the first instance judge’s decision.  It is not an occasion to re-assess the applicant’s non-refoulement claim or to review the decision of the Board or the Director.  In his written submission, the applicant has not identified any error in the Judge’s decision or reasons.  Nor has he indicated the basis upon which this Court might interfere with the Judge’s decision. 

18.  Further, other than point (3), all the other arguments in the written submission are general propositions. The applicant has not indicated how they relate to his case and how they apply to the intended appeal against the Judge’s decision.  In particular, the reference to section 37ZT in point (5) is clearly irrelevant since the section concerns delay in filing an appeal to the Board, but the applicant’s appeal to the Board was not late. 

19.  As for point (3), it was an argument not raised in the Form 86 or the supporting affirmation.  It would not be open to the applicant to argue it in the intended appeal.  In any event, it is only a bare assertion with no particulars given. 

20.  We are of the view that the intended appeal has no prospect of success.  This being the case, it would be futile to give leave to appeal out of time.  Accordingly, we dismiss the applicant’s summons filed on 20 December 2019.

21.  As the present application is totally without merit, we further make an order under Order 59 rule 2A(8) of the Rules of the High Court that the applicant may not request our determination to be reconsidered at an oral hearing.