RE SHERPUNJA THAPA KUL PRASAD

CACV 345/2022

[2023] HKCA 200

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 345 OF 2022

(ON APPEAL FROM HCAL 166/2019)

____________________

____________________

___________________

J U D G M E N T

___________________

Hon Barma JA (giving the Judgment of the Court):

1.  This is an appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) given on 11 August 2022 refusing to extend time for the applicant to apply for leave to apply for judicial review and refusing to grant leave to the applicant to apply for judicial review.

2.  The intended judicial review was against (1) two decisions of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”) dated 7 April 2017 (“the Board’s 1^st Decision”) and 11 January 2019 (“the Board’s 2^nd Decision”) respectively dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 10 April 2015 rejecting the applicant’s non-refoulement claim (“the Director’s 1^st Decision”) and refusing to allow the applicant to file his Notice of Appeal out of time in respect of his appeal against the Director’s further decision dated 15 November 2017 (“the Director’s 2^nd Decision”); and purportedly also against (2) both of the Director’s 1^st and 2^nd Decisions.

Background

3.  The applicant is a national of Nepal. He entered Hong Kong on 30 January 2014 as a visitor, but he overstayed and was arrested by the police on 10 February 2014.  He thereafter lodged a torture claim on 12 February 2014, which was subsequently treated as a non-refoulement claim under the Unified Screening Mechanism.

4.  The applicant’s claim was based on a fear of being harmed or killed by supporters of the Communist Party of Nepal (Maoist).  The details of the applicant’s claim have been summarised by the Judge at [1] to [4] of the Judge’s decision (“the CALL-1 Form”)[1].

5.  By a Notice of Decision dated 10 April 2015 (i.e. the Director’s 1^st Decision), the Director decided against the applicant’s claim.  The Director’s 1^st Decision covered the BOR 3 risk^[2], the persecution risk^[3] and the torture risk^[4].

6.  The applicant appealed against the Director’s 1^st Decision to the Board, and an oral hearing was held on 27 May 2016.  The Board found that the applicant was an unreliable witness and that the inconsistencies in his evidence rendered it incredible.  In any event, the Board found that state protection and options of internal relocation were available to him.  The applicant’s appeal was therefore dismissed by the Board’s decision dated 7 April 2017 (i.e. the Board’s 1^st Decision).

7.  Subsequently, it transpired that a claim based on the ground of the BOR 2 risk^[5] had become available to the applicant.  An invitation (by the Director to the applicant by letter dated 12 June 2017) to submit additional facts pertaining to a claim based on the BOR 2 risk was made.  The applicant thereafter replied by letter on 22 June 2017, merely claiming that he should not be removed from Hong Kong until his claims have been determined by the Hong Kong government, but without setting out any additional facts relating to his claim based on the BOR 2 risk.  Accordingly, his claim on all applicable grounds including the BOR 2 risk was determined on the papers by the Director.

8.  The Director by his further decision dated 15 November 2017 (i.e. the Director’s 2^nd Decision) rejected the applicant’s claim.  Taking into account all relevant circumstances, the Director considered that the applicant’s non‑refoulement claim based on the BOR 2 risk was not substantiated.

9.  The applicant then sought to appeal against the Director’s 2^nd Decision to the Board, but was out of time by 27 days in filing his Notice of Appeal.  The applicant claimed that he had not received a copy of the Director’s 2^nd Decision in time to meet the deadline.  The Board found that the applicant’s explanation was a bare assertion without documentary evidence in support (such as a copy of the envelope with postage stamp which contained the Director’s 2^nd Decision sent to him), and also that the delay of 27 days was inordinate.  

10.  The Board dismissed the applicant’s application to file his Notice of Appeal out of time, on the papers, by its decision dated 11 January 2019 (“the Board’s 2^nd Decision”). 

The Judge’s decision

11.  The applicant filed a Form 86 on 17 January 2019 purportedly seeking to judicially review all four decisions, namely the Director’s 1^st and 2^nd Decisions and the Board’s 1^st and 2^nd Decisions.

12.  In his supporting affirmation filed on the same date, the applicant set out his grounds of review, which are in gist (1) a lack of legal representation (after the date of the Director’s 1^st Decision); (2) a lack of language assistance; (3) bias on the part of the adjudicator of the Board by reason of his adverse finding on the applicant’s credibility; and (4) the lack of an oral hearing before the Board before the Board’s 2^nd Decision was reached (respectively “Grounds 1 to 4”).

13.  After summarising the facts and background of the case and giving due consideration to the Decisions of the Director and the Board, the Judge refused to extend time for the applicant or to grant him leave for judicial review.  The Judge gave the following reasons in refusing to extend time and leave to apply for judicial review at [12] to [26] of the CALL-1 Form:

“12. On 17 January 2019 the Applicant filed his Form 86 for leave to apply for judicial review of all 4 decisions of the Director and the Board, and in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

(1) Lack of legal representation for his BOR 2 Claim before the Director or for his appeals before the Board which is procedurally unfair to his claim; and

(2) Lack of language assistance for not providing him with any translation of the Board’s decisions for him to properly understand the contents of the decisions which is procedurally unfair to is claim.

13. For his intended challenge of both decisions of the Director, as held by the Court of Appeal in Re Moshsin Ali [2018] HKCA 549, a decision of the Director is not susceptible to judicial review once an appeal to the Board has been pursued by a claimant, as in the present case by the Applicant regarding both decisions of the Director, I therefore treat his present application before me as one against the decisions of the Board only.

14. However, for the intended challenge of the Board’s first decision of 7 April 2017 in dismissing his appeal regarding his claim under torture risk, BOR 3 risk and persecution risk, the Applicant was seriously out of time, as Order 53 rule 4(1) of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the day when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.

15. As the last day of the three-month period for him to file his Form 86 against that first decision of the Board fell on 7 July 2017, the Applicant was therefore some 1½ years late with his application, and in considering whether to extend time, the court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of eth intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393.

16. In the Applicant’s case, a delay of 1½ years must be considered as extremely substantial and inordinate, for which he did not provide any explanation in his Form or affirmation or at the hearing of his application, and as the record shows that the decision was sent on the same day to his then reported address without being returned through undelivered post, I am unable to see any good reason for his such serious delay.

17. As for the merits, if any, of his intended application regarding that decision of the Board, as noted above his complaint under Ground (1) referred only to his BOR 2 Claim and not applicable or arguable at all against that earlier decision of the Board which assessed his claim under the other applicable grounds, nor for the same reason is his Ground (2), and hence I do not find any merits in his intended application as regard the earlier first decision of the Board.

18. Accordingly, I shall proceed to consider his proposed grounds as regard the second decision of the Board, but as it was a decision which refused to allow the late filing of his Notice of Appeal against the Director’s Further Decision regarding his BOR 2 Claim, of which the Board therefore was not required to conduct any assessment or determination, and as the Board was in my judgment correct and entitled to arrive at its decision in refusing the late filing of his Notice of Appeal upon taking account of all the relevant matters of fact within its knowledge under Section 37ZT(2) of the Ordinance including the merits or substance of the appeal: see Re Qasim Ali [2019] HKCA 430, I do not find either of these grounds of the Applicant applicable or arguable for his intended challenge of this second decision of the Board either.

19. Even if the Applicant were to be allowed to file his Notice of Appeal and to proceed with his BOR 2 Claim before the Board, these grounds of his would not in my judgment have assisted or advanced his case any further for the following reasons.

20. For his complaint in Ground (1) of not being provided legal representation for his BOR 2 Claim before the Director or for his appeals before the Board, the Court of Appeal has already held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51/2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 37, and Re Zafar Muazam [2018] HKCA 176.

21. The Applicant already had the benefit of legal representation from DLS in presenting his case to the Director, and was able to testify and make representation in his first appeal hearing before the Board and to answer questions raised of his claim by the Adjudicator without any problem or difficulty with the assistance of an interpreter. As such I do not find anything amiss arising from the lack of legal representation in his appeal process, nor do I find this ground reasonably arguable for his intended challenge.

22. As for his complaint under Ground (2) of not being provided with a translation of the Board’s decisions, it is clear that he had had legal assistance in his present application, but in the absence of any particulars or specifics to demonstrate that the basis of his claim had indeed been wrongly interpreted or misunderstood by the Board in its first decision when on the factual basis of even his own case at the highest as found by the Director, his claim simply did not engage the BOR 2 ground given its limited scope, and hence there is simply no basis or merits in this complaint of the Applicant either.

23. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim where the proper occasion for an Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board, where the evaluation of risk of harm is primarily a matter for them who are entitled to make their evaluation based on the evidence available to them, and that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being properly and clearly identified by the Applicant, and that judicial review is not an avenue for revisiting those assessment by the Director or the Board in the hope that the court may consider the matter afresh: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

24. The fact is that it has been established by both the Director and the Board in their first decisions that the risk of harm in the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for him 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.

25. In the premises and having considered 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 or in the Board’s second decision to refuse the late filing of his appeal.

26. For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reason for his serious delay regarding the Board’s first decision for which I refuse to extend time, I accordingly refuse his leave application against either decision of the Board.”

Grounds for appeal

14.  In the Notice of Appeal filed on 24 August 2022, the applicant raised several complaints against the Judge, essentially that the Judge:

(1)  failed to acknowledge his “language incapability”;

(2)  failed to consider the significance of his lack of legal representation; and

(3)  did not consider all the grounds he raised in his supporting affirmation to the Form 86.

15.  In breach of paragraph 3(1) of the directions given by the Registrar of Civil Appeals on 15 November 2022, the applicant failed to lodge skeleton submissions 28 days before the hearing of the appeal, i.e. on or before 4 January 2023. The applicant lodged his submissions late, on 18 January 2023.  Although the delay (of 14 days) was not insignificant, on this occasion, this court decided to exceptionally grant a retrospective extension of time for the applicant to file his skeleton submissions, and directed that the hearing of the appeal, which had been vacated by reason of the applicant’s breach of directions, be relisted for hearing.

16.  In his written submissions, the applicant stated that he believed the Board’s 1^st Decision (and its finding on his credibility) “should be subjected to review”, and submitted that the Board’s decisions were reached unfairly and were unreasonable by reason of the lack of legal and language assistance.

17.  We heard the appeal on 1 February 2023.  The applicant appeared at the hearing but had nothing to add to the matters already stated in his Notice of Appeal and written submissions.

Discussion

18.  The Judge stated at [13] of the CALL-1 Form that the Director’s 1^st and 2^nd Decisions are not susceptible to judicial review once appeals against those decisions have been brought before the Board.  We agree, and also agree with the Judge’s treatment of the application before him as one which concerned only the Board’s decisions, and we shall likewise do so for the purpose of this appeal.

19.  As a starting point, as this court has often stated, an appeal to the Court of Appeal is not a fresh application for judicial review, it is necessary to identify some error on the part of the judge that would justify this court in intervening.

20.  Further, an application for leave for judicial review is not a rehearing of the appeal to the Board and the court’s role is not to act as an avenue of further appeal from the Board.  It is incumbent on the applicant to point out the procedural or other public law errors allegedly committed by the Board.  The Judge would not be required himself to come to a view on whether the applicant would face any of the proscribed risks of harm upon return.  The court should not usurp the role of the Board and will only intervene if public law grounds for doing so are established.  See Re Zunariyah [2018] HKCA 14, Re Qadir Sher [2018] HKCA 160, Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152, Re Rizwan alias Rizwan Gulistan [2018] HKCA 162, and Re Masoom Parvez [2018] HKCA 163.

21.  By the decision contained in the CALL-1 Form, the Judge refused to extend time for the applicant to apply for leave to judicially review the Board’s 1^st Decision.  In reaching this conclusion, the Judge took into account the length of the delay (which was very substantial – over 18 months), the lack of reasons provided by the applicant for the delay and the lack of merits in the application (at [14]-[17] of the CALL-1 Form).  In considering the merits of the applicant’s application, the Judge was of the view that as Grounds 1 and 2 (which were directed at the Board’s consideration of the applicant’s claim based on the BOR 2 risk) were unrelated to the Board’s 1^st Decision (which was made based on all applicable grounds save the BOR 2 risk), the applicant’s intended challenge against the Board’s 1^st Decision was in any event unmeritorious and therefore time should not be extended.

22.  We shall discuss the merits of the intended judicial review in more detail below, but at this juncture we express our agreement with the Judge in that the intended application for leave to judicially review the Board’s 1^st Decision was grossly delayed without explanation.

23.  As regards the challenge against the Board’s 2^nd Decision (which refused the applicant’s request to file his appeal with the Board out of time), the Judge took the view that the Board’s reasoning in reaching the decision could not be faulted.  Further, the Judge held that even if the applicant’s appeal was allowed to be lodged out of time, for the reasons stated at [20] to [22] of the CALL-1 Form, his complaints as set out in Grounds 1 and 2 were without merit and therefore leave to apply for judicial review should not be granted in any event.

24.  We shall first proceed to deal with the applicant’s grounds of appeal concerning his complaints of a lack of legal and language assistance in the proceedings below (which were Grounds 1 and 2 in the application before the Judge), before dealing with his ground of appeal which concerns the Judge’s failure to consider all grounds as set out in his supporting affirmation to the Form 86 (namely Grounds 3 and 4 in the application before the Judge, which the Judge appears to have omitted expressly to deal with in his discussion in the CALL-1 Form).

25.  The applicant complained in the supporting affirmation to the Form 86 and in the Notice of Appeal that his lack of legal representation and language assistance had rendered the proceedings before the Board as well as its decisions unfair.

26.  In this regard, we agree with the Judge that the applicant had already had legal representation from the Duty Lawyer Service in the presentation of his case to the Director, and that based on established authorities (set out at [20] of the CALL-1 Form), a non-refoulement claimant does not have an absolute right to free legal representation at all stages of the proceedings in the determination of his claim.  There is therefore no merit in the applicant’s ground of appeal relating to legal representation.

27.  In respect of language assistance, the Judge noted that the applicant was able to testify and make representations on his own behalf before the Board at the hearing (which led to the Board’s 1^st Decision) without problem or difficulty, and that he was also assisted by an interpreter at the hearing (see [21] of the CALL-1 Form).  We note in this regard that the applicant was able to lodge written submissions with this court in comprehensible English, either prepared by himself and/or with the assistance of others, and there is nothing to suggest that his apparent lack of “language assistance” has hindered his conduct of the proceedings below or of the present appeal.  We are therefore also of the view that there is no merit in the applicant’s ground of appeal relating to language assistance.

28.  Significantly, the applicant in the Notice of Appeal also contended that the Judge had failed to consider all the grounds he raised in his supporting affirmation to the Form 86.  While this contention is certainly untrue with regards to Grounds 1 and 2 (as discussed above), the Judge did not appear to have referred to or specifically discussed Grounds 3 and 4, which complained of bias on the part of the adjudicator of the Board by reason of his adverse finding on the applicant’s credibility and the lack of an oral hearing before the Board before the Board’s 2^nd Decision was reached. 

29.  However, notwithstanding the absence of express reference to these issues, the Judge had in our view considered the Board’s reasoning which led to the finding on the applicant’s credibility, which he did not consider could be faulted, as he stated at [24] and [25] of the CALL-1 Form that:

“24. The fact is that it has been established by both the Director and the Board in their first decisions that the risk of harm in the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for him 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.

25. In the premises and having considered 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 or in the Board’s second decision to refuse the late filing of his appeal.” (emphasis added)

30.  We have likewise subjected the Board’s 1^st Decision (which contained the finding of credibility of the applicant) to rigorous examination and anxious scrutiny, and cannot find any error of law or procedural unfairness, such as any alleged bias towards the applicant.  We are unpersuaded by the applicant’s complaint of bias by the Board, a complaint which is based on its findings as to his credibility, to which it was entitled to come having heard the applicant’s oral evidence at the hearing before it.

31.  As regards the Board’s determination of the applicant’s request to file his appeal out of time on the papers in lieu of hearing the applicant at an oral hearing, it should be appreciated that section 37ZT(2) of the Immigration Ordinance (Cap 115) provides that the Board “must decide, as a preliminary decision without a hearing”, whether the Board would allow the late filing of the Notice of Appeal.  Further, an opportunity was in any event given to the applicant to lodge with the Board a statement of reasons for the delay before its 2^nd Decision was reached, but in the applicant’s statement he had merely claimed that he received the court’s letter late, without further elaboration or supporting evidence.  There is therefore nothing in the applicant’s complaint of the lack of an oral hearing.

32.  We accordingly find no procedural unfairness or error or unlawfulness in the Board’s 2^nd Decision.

33.  Notwithstanding that it would have perhaps been desirable for the Judge to refer specifically to the applicant’s complaints raised in Grounds 3 and 4, we are satisfied that in any event he (as was this court), had duly considered all decisions of both the Director and the Board and found no basis for intervening.

34.  We also agree with the Judge (as he stated at [24] of his decision) that it has been established on the facts and evidence by both the Director and the Board in their first decisions that the risk of harm in the applicant’s claim is a localised one, and that it is not unreasonable for him to relocate to other parts of Nepal.  There is, as the decision-makers below found, simply no basis to grant him non-refoulement protection in Hong Kong.

35.  For the reasons above, we are of the view that, in respect of:

(1)  the application for leave to apply for judicial review out of time against the Board’s 1^st Decision, taking into account the inordinate delay and the lack of merits, the Judge rightly refused to extend time for the making of the application;

(2)  the application for leave to apply for judicial review against the Board’s 2^nd Decision, by reason that the applicant’s intended review is unmeritorious, the Judge was also correct in refusing to grant leave to the applicant.

36.  There is therefore no merit in the appeal and we dismiss the appeal accordingly.