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CAMP 538/2022, [2023] HKCA 633
On An Intended Appeal From [2021] HKCFI 3409 &
[2022] HKCFI 436
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
MISCELLANEOUS PROCEEDINGS NO 538 OF 2022
(ON AN INTENDED APPEAL FROM HCAL NO 266 OF 2021)
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| BETWEEN |
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RANA RAJAN |
Applicant
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and
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TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE |
Putative Respondent
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and |
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DIRECTOR OF IMMIGRATION
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Putative Interested Party
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________________________
| Before: |
Hon Au and Chow JJA in Court |
| Date of Written Submissions: |
21 December 2022 |
| Date of Judgment: |
9 May 2023 |
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JUDGMENT
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Hon Chow JA (giving the Judgment of the Court):
1. On 13 December 2022, the Applicant took out a summons to apply for an extension of time to appeal against the order of Deputy High Court Judge K W Lung (“the Judge”) dated 25 November 2021 (“the Order”) refusing to grant the Applicant 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 17 February 2021, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 23 November 2020 rejecting the Applicant’s non-refoulement claim.
3. Having considered the documents, we are of the view that it is appropriate to determine this application on paper without a hearing under Order 59, Rule 14A of the Rules of the High Court, Cap 4A, notwithstanding the Applicant’s request for an oral hearing of the application.
BACKGROUND
4. The Applicant is a national of Nepal. He first arrived in Hong Kong as a visitor on 24 September 2011. In the ensuing years, he was convicted of various criminal offences. Subsequently, a Deportation Order was issued against him on 13 August 2020. In September 2020, the Applicant lodged a non-refoulement claim on the basis that, if refouled back to Nepal, he would be at risk of harm by the family of a person called Prakash Malla whom the Applicant had, with others, physically assaulted in Nepal. The Applicant also claimed that he was afraid of the Nepal Police who might arrest him upon his return to Nepal.
5. By a Notice of Decision dated 23 November 2020, the Director rejected the Applicant’s non-refoulement claim on all applicable grounds: risk of torture[1], BOR 3 risk[2], persecution risk[3] and BOR 2 risk[4] (“the Director’s Decision”).
6. The Applicant appealed the Director’s Decision to the Board. On 17 February 2021, the Board dismissed the Applicant’s appeal, and confirmed the Director’s Decision (“the Board’s Decision”).
7. On 3 March 2021, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision. No ground of judicial review was given in the Form 86.
8. However, he later wrote a letter to the Court (received on 26 October 2021) requesting to withdraw his application on the ground that he had already settled his problem with his enemy and they would not harm him if he went back to his home country.
THE JUDGE’S DECISION
9. On 25 November 2021, the Judge dealt with the leave application on paper, and refused to grant the Applicant leave to apply for judicial review for the following reasons ([2021] HKCFI 3409):
“[3] By letter received on 26 October 2021, the applicant applied to the Court to withdraw his application, saying that his problem in his country has been settled. He wants to go back to his country as soon as possible.
[4] The Court of Appeal in AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015:
‘It is well established that the court may exercise discretion not to grant a remedy on judicial review if it would serve no practical purpose, where it may have become otiose or pointless to grant a remedy because the relevant detriment to the applicant has been removed (De Smith’s Judicial Review (7th ed) at §§18-054 to 18-056; Judicial Review by Supperstone, Goudie and Walker (5th ed) at §18.18.1)….’ [67]
[5] As the applicant has no problem in his country, the Court should refuse to grant him the remedy and the applicant’s application should be dismissed.”
10. On 22 February 2022, the Judge refused the Applicant’s application by summons dated 20 January 2022 for an extension of time to appeal against the Order ([2022] HKCFI 436).
THIS APPLICATION
11. By a summons taken out on 13 December 2022, the Applicant applied to the Court of Appeal for an extension of time to appeal against the Order. In a document attached to his affirmation filed in support of the application, the Applicant set out some general principles of law relating to non-refoulement claims, but failed to explain how they were applicable to his case. He also said that he previously applied to withdraw his application for leave to apply for judicial review in the mistaken belief that his problem had been solved. He claimed that based on updated information provided by his wife, a Hong Kong resident who had visited Nepal, his life would still be in danger and it would not be safe for him to go back to his home country at this moment.
12. In a handwritten document titled “The Affirmation of Rana Rajan” dated 21 December 2022 which the Registrar of Civil Appeals has directed should be treated as the Applicant’s written submissions in support of the present application, the Applicant stated that he disagreed with the decisions of the Director and the Board, alleging procedural impropriety and/or unfairness. He also complained about the lack of language and legal assistance in the non-refoulement claim assessment process. He failed, however, to identify any error in the Judge’s decision.
DISCUSSION
13. 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.
14. 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.
15. 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)).
16. The complaints now raised by the Applicant in his affirmation and written submissions have no merits.
(1) The Applicant’s explanation for his change of stance regarding the existence of risk of harm or to his life back in his home country is a bare allegation without particulars or evidence in support.
(2) The complaint about procedural impropriety and unfairness is likewise a bare and general allegation. Generally, 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. No such error of law or procedural unfairness or irrationality in the decision of the Board is shown in the present case.
(3) Lastly, the complaint about the lack of language and legal assistance in the non-refoulement claim assessment process is a new complaint which was not raised in the Form 86 or in his affirmation of 9 February 2021 filed in support of the application for leave to apply for judicial review. There is no good reason to allow the Applicant to raise a new ground of complaint in the Court of Appeal which was not raised in the application below. In any event, the Applicant had legal and language assistance in relation to the assessment of his non-refoulement claim by the Director, and language assistance at the hearing of his appeal before the Board. It is well established that an a non-refoulement claimant is not entitled to legal and language assistance at all times that he/she may desire.
17. The Applicant has failed to point to or show any error in the Judge’s decision of 25 November 2021, and has failed to raise any viable ground of appeal against the Order.
18. 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 Order.
DISPOSITION
19. The application for extension of time to appeal is refused, and the Applicant’s summons taken out on 13 December 2022 is dismissed.
(Thomas Au)
Justice of Appeal |
(Anderson Chow)
Justice of Appeal |
| The Applicant, acting in person |
[1] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.
[2] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[3] This refers to the risk of persecution with reference to the non‑refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees.
[4] This refers to the risk of being arbitrarily deprived of her life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
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