RE PHULMATI LAMA

CAMP 321/2021

[2021] HKCA 1542

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 321 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 1349 of 2018)

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J U D G M E N T

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

1.  This is the applicant’s renewed application for extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”)  dated 20 April 2021 refusing her application for leave to apply for judicial review.

2.  The applicant’s intended judicial review is against the decision of the Torture Claims Appeal Board (“the Board”)  dated 19 June 2018 dismissing his appeal against the decisions of the Director of Immigration (“the Director”)  dated 5 February 2015 and 23 January 2017 rejecting her non-refoulement claim.

3.  The applicant has filed an affirmation and lodged a written submission in support of her application.  

4.  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 applicant’s summons, affirmation and written submission, we are of the view that it is appropriate to determine the present application on paper without a hearing.

5.  The applicant is a national of Nepal aged 43.  She entered Hong Kong illegally and was arrested by the police on 7 July 2009.  She made a non-refoulement claim based on fear of being harmed or killed by people of the Maoists because she refused to join them and her husband was killed by them for his refusal to join them.  The details of the applicant’s claim were set out in the Director’s first decision at [6] and the Board’s decision at [1] to [8].  We will not repeat them.    

6.  By two decisions dated 5 February 2015 and 23 January 2017, the Director rejected the applicant’s claim.  The first decision covered the torture risk[1], BOR 3 risk[2] and persecution risk[3] grounds, and the further decision dealt with the BOR 2 risk[4] ground.  

7.  The applicant appealed the Director’s first decision to the Board.  An oral hearing was held 26 January 2017.  By then the Director had rendered his further decision.  The Board therefore considered the appeal on all four applicable grounds.  The applicant declined to give evidence or answer questions from the Board.  By its decision dated 19 June 2018, the Board dismissed the appeal.  The Board found there was no reliable evidence to support the applicant’s claim that her husband was murdered by the Maoists, or that the Maoists have any reason to harm her.  The Board held that she failed to establish her husband’s death was in any way related to the Maoists, or that she had been threatened by the Maoists on two encounters.  The Board further found state protection is available to the applicant, which would reduce any harm she may face.  The Board concluded that she has not established she is at risk of any harm and is not entitled to non-refoulement protection on any of the applicable grounds.

8.  On 11 July 2018, the applicant filed a Form 86 together with an affirmation to apply for leave to judicially review the Board’s decisions.  The applicant did not provide any grounds for seeking relief.  She only reiterated her claim in the written submission and contended it was not safe for her to return to Nepal.   

9.  The applicant did not request an oral hearing, and the Judge dealt with the application on the papers. By a Form CALL-1 dated 20 April 2021[5], the Judge refused the application for the reasons he gave at [11] to [13].  Primarily, the Judge, after examining the Director’s and the Board’s decisions, found there was no error of law, irrationality or procedural unfairness, or failure to adhere to the high standards of fairness. The Judge concluded that the intended judicial review did not enjoy any prospect of success. 

10.  Pursuant to Order 53, rule 3(4)  of the Rules of the High Court, the applicant may appeal to the Court of Appeal against the Judge’s order refusing leave within 14 days after such refusal.  The 14-day period for the applicant to appeal the Judge’s order expired on 4 May 2021.

11.  By a summons filed on 18 May 2021 together with a supporting affirmation, the applicant applied for an extension of time to appeal the Judge’s decision.  The Judge heard the application at an oral hearing, and by his decision dated 5 August 2021 dismissed the application[6]. 

12.  On the same day, the applicant filed the present summons to make a further application to this Court for extension of time to appeal.

13.  In deciding whether to extend time for appealing against the Judge’s decision refusing her leave to apply for judicial review, the court has to consider: (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. 

14.  The applicant was late by two weeks when she filed the 18 May 2021 summons, which is not insubstantial. In the application made to the Judge, the applicant explained that she had changed her address and did not receive the Court’s letter, and she only learnt from the immigration officer that the Court had made a decision.  We agree with the Judge that the delay was due to the applicant’s failure to promptly update the Court of the change of address and it is not excusable.  In the circumstances, the applicant has to show that her intended appeal has a real prospect of success.

15.  In considering the merits of the intended appeal, we would adopt the legal principles which have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

16.  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.  It is not the role of this court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

17.  In the present application, the applicant had not provided any grounds to support her application in the summons and supporting affirmation.  In the written submission, the applicant stated that she has a political problem and her enemy is the Nepal Communist Party, which is notorious for killing and harming its political opponents.  She asserted that her husband was murdered by the Maoist and she is the next target, which was why she fled to Hong Kong. She asked that she be given an extension of time to appeal, otherwise her life will be in trouble.     

18.  In our view, the matters put forward by the applicant do not amount to viable grounds of appeal.  In light of the Board’s rejection of the factual basis of her claim, her assertion of risk of harm cannot stand.  Further and critically, she has not pointed to any error in the Judge’s decision or the Board’s decision that warrant intervention by this Court.   

19.  We have in any event examined the Board’s decision.  We do not discern any legal error, irrationality or procedural irregularity that warrant intervention by the Court. We agree that the intended judicial review has no reasonable prospect of success, and the Judge was correct in refusing leave to apply for judicial review. 

20.  As the applicant’s intended appeal against the Judge’s dismissal of the application for leave to apply for judicial review has no prospect of success, it would be futile to extend the time to appeal.  Accordingly, we dismiss the summons filed on 5 August 2021.