RE DILIP KUMAR RAI

HCAL 2836/2018

[2021] HKCFI 370

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2836 OF 2018

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D E C I S I O N

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1.  The applicant was born on 10/6/1961 in Nepal. He came to Hong Kong on 18/1/2005. He had overstayed since 22/1/2005. He was arrested by the police on 14/7/2008 for overstaying[1]. He filed a torture claim on 18/8/2008. At the commencement of the USM on 3/3/2014, his torture claim was treated as a non-refoulement claim—subject matter of this case [2].

2.  The applicant feared that if he returned to Nepal, he would be harmed or killed by the Maoists. During a conflict in December 2004, he had accidentally injured a person later known to be a Maoist. As he was a member of the youth wing of the Nepali Congress Democratic Party, he would be targeted by the Maoist.

3.  On 23/3/2015, the Director rejected his non-refoulement claim. His appeal to the TCAB was dismissed on 19/4/2017.

4.  On 9/5/2017, the Director invited him to file further evidence in relation to BOR 2 claim. On the basis of the further information submitted, the Director rejected his BOR 2 claim on 11/8/2017. The TCAB dismissed his appeal on 30/11/2018.

5.  On 11/12/2018, the applicant applied for leave for judicial review against the decisions of the TCAB on BOR 2 only (dated 30/11/2018).  He pointed out in his supporting affirmation that he had no legal representation in this leave application. The TCAB was biased and dismissed his claim on credibility. The decision of the TCAB was not translated to him. His life was genuinely in danger.

6.  Deputy Judge Lung fixed a hearing on 23/8/2019. According to the call-1 Form, the applicant confirmed that he was allowed to express himself freely before the Director and the TCAB. [3]

7.  Deputy Judge Lung actually considered both decisions of the TCAB in the leave application albeit that the applicant only sought leave against the further TCAB decision (dated 30/11/2018) in the Form 86. The judge held that the applicant was not entitled to free legal representation at every stage of the proceedings. It was for the adjudicator to determine the facts. The high standard of fairness did not require translation services for the applicant at any stage of the proceedings. The Judge concluded that there was no reasonable prospect of success in the intended judicial review. Leave for judicial review was refused on 30/7/2020.

8.  The applicant filed a summons on 7/10/2020 for extension of time to appeal against the decision of Deputy Judge Lung [4]. He was about 8 weeks out of time.

9.  In his affirmation in support of the application for extension of time, the applicant indicated that he did not receive the decision from the court. It might due to problems in the mail. He did not understand English and had difficulty understanding the decision. He had no legal representation. He requested for a hearing.[5]

10.  In considering whether to extend the time for appeal, this 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.[6]

11.  On 15/12/2020 during the oral hearing before this court, the applicant explained that he had not changed his address. He had not received the decision from Deputy Judge Lung. He only received the notice for this hearing.[7] He further explained that there was a letter box for Rm. B, 9^th floor. However, Rm. B was subdivided into 5 rooms, someone might have taken away the letter from the court.

12.  The applicant was out of time for about 8 weeks. He claimed in his affirmation that he did not receive the decision of Deputy Judge Lung. According to the court record, that decision had already been sent to the applicant on 30/7/2020. It was sent to his last known address. There was no return of mail.

13.  It is not clear why the applicant had not received the decision by Deputy Judge Lung. He had not changed his address. Under normal circumstances, the decision should have reached him by ordinary mail. In fact, he received the notices of hearing from this court sent to the same address in July 2019 and November 2020. While it may not be able to find out the reason for the non-delivery, the paramount importance in this application remains the merits of the intended judicial review.[8]

14.  In support of his non-refoulement claim, the applicant alleged that in December 2004, while he was on holiday in Hetauda with his wife and mother-in-law, he had a fight and injured a person who teased his wife. That person happened to be a member of the Maoist group. Since then, people from the Maoist group kept threatening him through his mother-in-law. He was so worried about his safety that he left Napal via China to Hong Kong on 18/1/2005.

15.  The applicant attended an oral hearing before the TCAB. The adjudicator made the following findings:

(a) While accepting there was a fight as alleged, the applicant’s injuries did not amount to ‘a minimum level of severity’. [9] The injuries did not amount to ‘torture’ as defined under the Immigration Ordinance.

(b) The fight arose from a private dispute between the applicant and the man later known as a Maoist. The fight was not instigated by or consented to or acquiesced by any person in official capacity.

(c) The applicant left Nepal a few days after he reported to the police. There was no evidence that the police or any authorities of Nepal deliberately refrain from taking action.

(d) The applicant was never confronted directly. It was only through his mother-in-law that the man was a Maoist and they threatened the applicant. All these were hearsay and the adjudicator was doubtful about its weight.

(e) The applicant had left Nepal for 12 years. There was no evidence that the Maoist group were still looking for him.

(f) According to the World Factbook by CIA, the Maoist had come to a peace accord with the Nepal government in 2006. It was no longer a terrorist group.[10]

16.  Given the above, the adjudicator found that there was no real risk of torture from the Maoist if he returned to India. The adjudicator dismissed the claims based on BOR 3, torture risk and persecution risk.

17.  There was a further decision of the Director on BOR 2 claim. The TCAB also dismissed the appeal on 30/11/2018. An oral hearing was held on 20/7/2018[11]. The adjudicator found the following evidence detrimental to the credibility of the applicant and his ex-wife [12]:

(a) The applicant’s evidence was from his brother-in-law. It was hearsay and subject to assessment of weight.

(b) His brother-in-law said he witnessed the Maoist group shooting his ex-wife. However, this was inconsistent with the affirmation of his ex-wife. According to her, her brother was not present. A neighbor told her brother after she was shot. Her brother took her to a hospital.

(c) His brother-in-law said that he went to the applicant’s land and found it was seized by the Maoist group. This was inconsistent with the applicant’s evidence—the land was sold in 2008 and the proceeds was given to his ex-wife in the divorce.

(d) The applicant submitted a notice on a newspaper which came from unknown source. The purpose of this notice was unknown.

(e) According to the affirmation of his ex-wife, the Maoist group came and threatened her at home at least twice every month. According to the applicant, she had not mentioned this to him from 2005—2008.

18.  The adjudicator rejected the evidence of the applicant and his ex-wife. The adjudicator dismissed the BOR 2 claim.

19.  In the affirmation in support of the application for extension of time to appeal, the applicant repeated in gist those grounds in the leave application before Deputy Judge Lung. In my view, the Judge had fully dealt with those grounds. I agree with the decision and need not repeat. In fact, according to both TCAB decisions, the applicant was represented during the oral hearings by the Duty Lawyer Scheme. He should have sufficient assistance in the proceedings.

20.  Given the reasons by the TCAB above, I also agree that there is no merit in the intended judicial review. In the circumstances, I dismiss his application for extension of time to appeal.