RE NAGARKOTI SUBASH

CAMP 317/2023, [2024] HKCA 629

On Appeal from [2022] HKCFI 2626

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 317 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO 1078 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.  On 28 September 2023, the applicant took out a summons to apply for leave to appeal out of time against the order of Deputy High Court Judge KW Lung (“the Judge”)  dated 23 March 2023 ([2023] HKCFI 743)  (“the EOT Decision”)  refusing to grant him an extension of time to appeal against an earlier order of the Judge dated 14 December 2022 ([2022] HKCFI 2626)  (“the Leave Decision”)  refusing his application for leave to apply for judicial review.

2.  The intended judicial review was against the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”)  dated 11 April 2019 (“the Board’s Decision”), dismissing the appeal against the decision of the Director of Immigration (“the Director”)  dated 19 April 2018 rejecting the applicant’s non-refoulement claim (“the Director’s Decision”).

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

BACKGROUND

4.  The applicant is a national of Nepal.  He entered Hong Kong illegally on 8 January 2017 and surrendered to the Immigration Department on 18 January 2017. On 16 March 2017 and 12 April 2017 respectively, he lodged a non-refoulement claim.  His claim was made on the basis that, if refouled, he would be harmed or killed by his girlfriend’s father Sujan Thapa.  Details of the applicant’s non-refoulement claim were summarised by the Judge at [3] - [4] of the Leave Decision.

5.  By the Director’s Decision, the Director rejected the applicant’s claim on all applicable grounds including the risk of torture[1], BOR2 risk[2], BOR3 risk[3], and persecution risk[4].

6.  The applicant appealed the Director’s Decision to the Board.  By the Board’s Decision, the Board dismissed the applicant’s appeal, and confirmed the Director’s Decision.  The Board’s reasons for its decision were summarised by the Judge at [7] - [10] of the Leave Decision:

“7. The applicant appealed the Director’s Decision to the Board. On 15 January 2019, the Board conducted an oral hearing for his appeal, during which he answered inquiries related to his claim [26]-[62].

8. Having considered the evidence, the Board made the following findings. The Board noted that the applicant’s evidence was inherently inconsistent in that he had provided inconsistent evidence to material aspects of his claim. For example, he gave different accounts as to whether Sujan visited his house during the attack [70]-[71]. He was also inconsistent as to Sujan’s demand, whether it was for him to leave Suja or to marry her [72]. Apart from these two examples, the Board also highlighted further inconsistencies at paragraphs 73 to 77, to which the applicant failed to provide satisfactory explanations [80].

9. In addition to the above, the Board further noted that the applicant contradicted himself as to whether he was located in Kapan by Sujan’s people and when he met Suja [81]-[83]. He also failed to provide documentary evidence to support his assertion that Sujan was politically involved [85]. In light of these unresolved inconsistencies, the Board rejected the applicant’s evidence for lack of credibility. In passing, the Board considered that the applicant was able to move to other parts of Nepal [87].

10.  For the aforesaid findings, the Board rejected the applicant’s claim and dismissed his appeal. ”

7.  On 23 April 2019, the applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision.  He complained that the Board’s procedure was unfair because the Board had fettered its discretion in disallowing his appeal without meeting the greater care and duty owed to a self-represented clamant; that the hearing bundle was only sent to him shortly before the hearing and it was without interpretation.  He was confused at the hearing before the Board.  Also, he complained that the Board had relied upon certain news, the source of which was outdated or hearsay, which caused the Board to speculate that it would be safe for him to return to Nepal.

8.  The applicant attended an oral hearing before the Judge on 2 November 2022.  A Nepali interpreter was also present to provide language assistance.

THE JUDGE’S DECISION

9.  On 14 December 2022, the Judge refused his application for leave to apply for judicial review.  His reasons were stated at [13] - [21] of the Leave Decision:

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

15.  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.’

16.  As to those grounds in paragraph 12, his complaint that the Board conducted the proceedings with procedural unfairness is bare assertion without any evidence in support. There is no record that he had applied to the Board for adjournment because of lack of time for his preparation. Nor is there any record from the Board that he was confused at the hearing. The Court of Appeal in Re: Sharma Poonam [2019] HKCA 804, 19 July 2019 held:

‘16. It has been decided in Hong Kong that the high standard of fairness required by law would not entail an interpretation service being made available to an applicant all the time as she may desire: see Re Gurnishan Singh [2018] HKCA 704; Re Gurung Sagar [2019] HKCA 658.’

17.  As to the issue of the Board relying upon the source of news which are outdated or hearsay, it is only his bare assertion or opinion without any evidence in support.

18.  Those grounds above are not valid reasons to challenge the Board’s Decision.

19.  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.

20.  The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.

CONCLUSION

21.>  I refuse to grant leave for the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.”

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 28 February 2023, the applicant applied by summons for an extension of time to appeal against the Leave Decision, claiming that he failed to receive the Leave Decision and the Court order within 14 days and that he should be given reasonable opportunity to present his case.  By that time, he was two months late with his intended appeal.

12.  On 23 March 2023, the Judge refused the applicant’s application, holding that the applicant was not able to raise any valid reason to challenge the Board’s Decision and that there was no realistic prospect of success in his intended appeal.

THIS APPLICATION

13.  By a summons and a supporting affirmation taken out on 28 September 2023 in the Court of Appeal, the applicant applied for leave to appeal against the EOT Decision.  Nowhere in his summons and supporting affirmation did the applicant provide any ground in support of his intended appeal.

14.  Pursuant to the directions given by the Registrar of Civil Appeals on 28 September 2023, the applicant lodged his written submissions on 12 October 2023.  In those submissions, the applicant repeated that he did not receive the court’s order within a reasonable period of time which was a breach of natural justice.  The applicant further claimed that he was detained at Castle Peak Bay Immigration Centre for seven months and was unable to properly prepare his case effectively.  The applicant also asserted that he had been denied a fair hearing as he was not given adequate time or opportunity to present his case.

DISCUSSION

15.  Following the approach in Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at [3] - [8], we will treat the present application as a renewed application for extension of time to appeal against the Leave Decision.

16.  In deciding whether to extend time to appeal, the court will take into account the length of the delay, the reasons for the delay, the chances of the appeal succeeding, and the degree of prejudice to the other party if an extension of time is granted.

17.  The prospect of success of an intended appeal is important.  The court will not grant an extension of time to appeal for a hopeless appeal to be pursued: Re Adumekwe Rowland Ejike [2019] HKCA 702, at [19].

18.  The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  In particular, 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’s decision, the appeal should be dismissed.  The Court of Appeal’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst at [14(6)]).

19.  Further, the assessment of evidence, country of origin information, 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 is an error of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022.

20.  In our view, the applicant’s delay of two months is substantial and inordinate.  As stated by the Judge, the Leave Decision was sent to the applicant at his last known address on 14 December 2022 without being returned by the Post Office.  We are not satisfied that the applicant had provided any good reason for his delay.

21.  More importantly, his intended appeal has no merit. There is no substance in his complaint that he was not afforded the opportunity to present his case and country situation.  The applicant had ample opportunities to advance his case both orally and through written submissions before the Judge in the determination of his application for leave to apply for judicial review.  In any event, he did not provide any valid ground of appeal before the Judge or before this court, and even by now, he still failed to point out any error in the Leave Decision.  Accordingly, we see no substance in his allegations.

22.  For the above reasons, there is no prospect of success in the applicant’s intended appeal.  It is thus futile to grant the applicant any extension of time to appeal against the Leave Decision.

DISPOSITION

23.  The application for extension of time to appeal is refused, and the applicant’s summons taken out on 28 September 2023 is dismissed.