RE GURUNG MANSINGH

CAMP 31/2018

[2018] HKCA 303

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO CAMP 31 OF 2018

(ON APPEAL FROM HCAL 444 OF 2017)

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J U D G M E N T

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

1.  This is an application for extension of time to appeal against the decision of Deputy High Court Judge Woodcock (“the Judge”) given on 7 March 2018 refusing leave to the applicant to apply for judicial review. The applicant is a Nepalese national who arrived in Hong Kong on 2 July 2013 with a valid passport. He was permitted to remain until 7 July 2013, but overstayed. He was arrested by the police on 29 July 2013 and was convicted of the offence of breach of condition of stay. He was sentenced to 14 days’ imprisonment suspended for 24 months as a result. He was then released on recognizance on 27 August 2013. He lodged his non-refoulement claim on 24 May 2014. The applicant’s non-refoulement claim was based on his fear of harm, or even being killed, by his paternal uncle, who was said to be a district leader of the Maoist Party, due to a land dispute among the family.

2.  By a Notice of Decision dated 4 September 2015, the Director of Immigration (“the Director”) decided against the applicant’s claim.  After considering the severity and the frequency of the alleged attacks by the applicant’s uncle and associates, the Director took the view that the fear of risk of being harm would not likely materialize.  The availability of state protection and the possibility of relocation would also lower the perceived risk of harm.  The Director also considered that the BOR 3 risk, the persecution risk and the torture risk would not warrant non-refoulement protection in favour of the applicant. 

3.  By a Notice of Further Decision dated 9 June 2017, the Director also considered the BOR 2 risk and decided against the applicant in that respect. 

4.  The applicant appealed to the Torture Claims Appeal Board (“the Board”).  After a hearing held on 31 August 2016, the Board dismissed the appeal.  The Board found that the applicant was not a genuine protection seeker who had faced imminent risk to his life before he left Nepal.  The Board also assessed that the applicant’s feared ill‑treatment would be unlikely to materialize, that state protection was available and that internal relocation was viable.  Having assessed the torture risk, the BOR 3 risk, the persecution risk, and the BOR 2 risk, the Board decided on 29 June 2017 that the applicant failed on all applicable grounds for non-refoulement protection.

5.  The intended judicial review was in respect of the Board’s decision.  The Form 86 filed by the applicant on 25 July 2017 did not contain any ground for judicial review.  In his supporting affirmation dated 25 July 2017, the applicant advanced the following grounds for judicial review:

(1)  the hearing bundle was only given to the applicant 6 days prior to the hearing before the Board, rendering insufficient time for him to prepare for the hearing;

(2)  the Board’s decision aggravated him in that his credibility was found questionable; and

(3)  the Board relied on sources of news which were not officially recognized and outdated.

6.  After summarizing the background of the case and giving consideration to the decision of the Board, the Judge gave the following reasons in refusing leave at [17] to [21] of the CALL-1 Form:

“17. I have considered with rigourous examination and anxious scrutiny the papers and grounds of this application. I find the adjudicator's decision to be without fault. He analysed material, claims and evidence with care. The applicant’s grounds and complaints are not made out. I find no substance in the grounds of this application.

18. The first ground is essentially a complaint that the applicant was confused at the appeal because he could not afford to have the appeal bundle translated to him. As a result, he was confused when he appeared at the oral appeal hearing. There is no merit in this ground when I consider that he raised no issue or complaint with the adjudicator at the hearing. If he had, the interpreter could have assisted and the adjudicator could have ensured he was not confused before they began.

19. In the second ground the applicant submits he answered all questions honestly and the adjudicator's finding on credibility aggravates him. I am satisfied the adjudicator gave full reasons for his findings of facts; they are reasonable and rational.

20. Lastly, the applicant accuses the TCAB of relying on out of date and unofficial Country of Origin information. He provides no particulars and I find no merit in this ground.

21. I do not find any ground that shows there was an error of law by the adjudicator.  I see no 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.  In my judgement the applicant’s claim is not reasonably arguable.  There is no realistic adjudicator prospect of success therefore, I refuse leave for judicial review.”

7.  According to the court record, the Judge’s order and the CALL‑1 Form were sent by post to the applicant on 7 March 2018.

8.  Pursuant to Order 53 Rule 3(4) of the Rules of the High Court, the applicant had 14 days to lodge an appeal against the Judge’s refusal of leave to apply for judicial review. The time limit therefore expired on 21 March 2018.   The applicant failed to do so within the time limit.

9.  On 26 March 2018, the applicant took out the present summons seeking leave to appeal out of time.  On 29 March 2018, the Registrar of Civil Appeals gave directions for the conduct of this application, which included the direction for filing written submission by the applicant.  Further directions were given on 20 April 2018 to the effect that, unless the applicant lodged written submissions within 5 days, he should be deemed to have no, and be barred from lodging any, written submissions, following which the court would decide whether to deal with the application on paper or by way of an oral hearing.

10.  The applicant did not lodge any written submissions.  We decided to deal with this application on paper pursuant to Order 59 rule 2A(5)(a) of the Rules of the High Court.   

11.  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 the delay; (2) the reason for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if extension of time was granted, see: Chee Fei Ming v Director of Food and Environment Hygiene [2015] 4 HKC 134, and also Wong Yuk Man v Ng Leung Sing & Anor, HCMP 3217/2015, 22 January 2016. 

12.  In the affirmation in support dated 26 March 2018, the applicant stated that he had only received the sealed order on 23 March 2018. 

13.  The delay is not inordinate.  We are prepared to accept the applicant’s reason for the delay.

14.  As we have previously held, the arguability of the intended appeal is an important consideration in an application for extension of time, see: Re MK, HCMP 2609/2016, 10 January 2017, Islam Raja Rais v Director of Immigration, HCMP 881/2017, 26 June 2017, and Re Gurung Min Bahadur [2018] HKCA 226. The crucial consideration in this application is whether the applicant can demonstrate that there is a reasonable prospect of success in the intended judicial review, see: Po Fan Chan v Winnie Cheung (2007) 10 HKCFAR 676.

15.  The applicant complained that he was confused at the hearing before the Board because of the late sending of the hearing bundle.  As the Judge rightly observed, the applicant did not raise any issue or complaint during the hearing before the Board.  It is not clear how the late sending of the hearing bundle would cause the confusion of the applicant at the hearing.  The applicant gave no specifics in this regard.  Nor is there any explanation why the applicant did not raise this issue with the Board or seek assistance from the interpreter during the hearing.  Even if we assume (without deciding) that there was late sending of hearing bundle, there is no evidential basis to suggest that the late sending would have tainted the fairness of the proceedings before the Board. 

16.  The Board gave detailed reasons in [29] to [46] of its decision explaining why it did not believe the applicant to be a genuine protection seeker.  Basically, the Board was troubled by the inconsistency of the applicant’s account that, on the one hand, he claimed to have come to Hong Kong for the purpose of seeking protection, but, on the other hand, he had waited for over 10 months after his arrival to lodge his non-refoulement claim.  Furthermore, given the time lapse between the alleged death threat and his leaving Nepal, the Board did not find that the applicant was facing any imminent threat before leaving his country. We do not find anything amiss in the Board reaching these conclusions. 

17.  Nor do we see any merits in the complaint that the Board used outdated and non-officially recognized source of Country of Origin Information (“COI”).  As the Judge rightly observed, the applicant provided no particulars regarding this complaint.  The Board thoroughly assessed the relevant COI, the news articles and news reports and concluded in [58] of its decision that there was no indication that the untoward acts of his uncle were endorsed by the Nepalese government and that there was nothing to suggest that the Nepalese government as a whole was aware of the situation but refused to do anything.  As we have said before, evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on evidence available to them.  Judicial review is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh even in the absence of any legal error, see: Re Lakhwinder Singh [2018] HKCA 246.

18.  On the basis of the Board’s finding on the applicant’s credibility, there is no basis for this court to accept the assertion that he would be subject to torture or any form of ill-treatment if he returns to Nepal.  Nor is there any scope for the applicant to argue that he would face a real risk of ill-treatment or torture based on the concept of state acquiescence, given the Board’s finding on the availability of state protection.  It is clear to us that the applicant has failed to meet the high threshold of establishing ill treatment as required by the law: Ubamaka v Secretary for Security (2012) 15 HKCFAR 743 at [172] to [174].

19.  Having considered the materials before us, we are satisfied that the Board had fully reviewed the applicant’s case.  We do not see any errors of law or procedure in the proceedings before the Board.  Nor is there any reasonably arguable basis to challenge the fairness of the process.  Determination of merits is a matter for the Board, not the court.  The court will not usurp the Board’s (as well as the Director’s) role as the primary decision maker, see: Re Zunariyah [2018] HKCA 14, Re Qadir Sher [2018] HKCA 160, Re Masoom Parves [2018] HKCA 163.  We share the Judge’s view that the applicant’s intended judicial review is not reasonably arguable and that leave to apply should be refused. 

20.  For these reasons, we take the view that there is no prospect of success in the intended appeal.  We will not grant extensions of time for hopeless appeals, and accordingly dismiss the summons dated 26 March 2018.