RE KARKI NAVARAJ

CAMP 497/2022, [2023] HKCA 909

On Appeal From [2022] HKCFI 1209

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 497 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO. 904 OF 2019)

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D E C I S I O N

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Hon Cheung JA (giving the Decision of the Court) :

1)  Renewed application for extension of time to appeal

1.  On 2 April 2019, the applicant issued his application for leave to apply for judicial review by Form 86 in HCAL 904/2022. The applicant’s intended judicial review was against the decision of the Torture Claims Appeal Board (‘the Board’) dated 27 March 2019 which dismissed his appeal against the decision of the Director of Immigration (‘the Director’) dated 16 November 2017 rejecting his non‑refoulement claim. Deputy High Court Judge K.W. Lung refused to grant leave on 3 May 2022.

2.  Under Order 53, rule 3(4) of the Rules of the High Court, the applicant had 14 days to appeal against the decision of the Judge (i.e. by 17 May 2022). Being out of time for over four months (since August 2022 was the Summer Vacation), the applicant took out an application on 26 October 2022 before the Judge requesting an extension of time to appeal. The Judge on 24 November 2022 rejected the applicant’s application for extension of time to appeal.

3.  Under Order 59, rule 14(3) of the Rules of the High Court, the applicant may, within seven days after the Judge’s refusal, make a renewed application to this Court for extension of time to appeal (i.e. 1 December 2022). On 25 November 2022, the applicant filed the present summons to make a further application to this Court for extension of time to appeal.

4.  On 7 July 2023, the Appeal’s Registry received a request from the applicant to dismiss his appeal.

5.  Under Order 59, rule 14A(1) of the Rules of the High Court, Cap. 4A, this Court may determine an interlocutory application without an oral hearing. Having considered the applicant’s summons and affirmation, we are of the view that it is appropriate to determine the present application on paper without a hearing.

2)  Factual background

6.  Briefly stated, the applicant is a Nepal national. He entered Hong Kong as a visitor in July 2015. He overstayed. He raised his non‑refoulement claim on 28 August 2015 alleging that he would be harmed or killed by people who claimed to be members of a rival political party called the Youth Force. The applicant was involved in a group flight with these people after a volley ball match.

3)  The Director’s Decision

7.  The Director decided against the applicant’s non‑refoulement claim. The Decision covered Hong Kong Bill of Rights (‘BOR’) Article 3 (torture/inhuman treatment) and Article 2 (right to life), as well as other statutory and convention rights against torture and persecution (‘the Director’s Decision’).

4)  The Board’s Decision

8.  An oral hearing was conducted by the Board on 29 November 2018. The Board dismissed the applicant’s appeal and the Director’s Decision was confirmed. The Board held that, even if assuming all of the events described by the applicant actually occurred, it was significant that the applicant had no further contact with the people involved with the flight. The threats of violence against the applicant’s parents were no more than wild and angry words. They did not appear to amount to real and intentional threat to kill the applicant. The applicant conceded that that was the case. His fear of future harm was wildly speculative, unrealistic and based largely on hearsay. The Board was not persuaded that the applicant has any real risk of harm if refouled.

5)  Decisions of the Judge

9.  In his decision dated 3 May 2022, the Judge held that no valid ground for seeking relief was stated in the applicant’s Form 86 or affirmation. There was no error of law or procedural unfairness.

10.  In his decision dated 24 November 2022, the Judge held that the applicant’s explanation for his delay was not acceptable. The Form CALL-1 was sent to the applicant’s last known address without being returned. The Judge held that the Board has rejected the applicant’s claim as it could not be found that the applicant would face any real risk of harm if he returned. There was no realistic prospect of success in the intended appeal. The application for extension of time for appeal was refused.

6)  Legal principles

11.  In considering whether to extend time for appeal, the Court will have regard to :

(1)  length of the delay;

(2)  reasons for the delay;

(3)  prospect of the intended appeal; and

(4)  prejudice to the putative respondent if extension of time was granted.

7)  Analysis

(1)  Length of delay and reasons for the delay

12.  Under Order 53, rule 3(4) of the Rules of High Court, the applicant had 14 days to appeal the decision of the Judge.

13.  The Form CALL-1 decision was handed down on 3 May 2022. The deadline for the appeal was 17 May 2022. The applicant was over four months late when he filed his extension of time to appeal application on 26 October 2022. The applicant made a bare assertion that he did not receive the decision, but the Court record showed that the decision was mailed to him on 3 May 2022 without being returned.

(2)  Prospect of the intended appeal

14.  In the applicant’s summons and affirmation, the applicant stated that he was not satisfied with the decision. He also stated that his life was still in danger.

15.  In our judgment, the applicant does not have any prospect of success in his intended appeal.

16.  The Judge had considered all the relevant matters including the merits of the applicant’s case when he refused to grant either leave for judicial review or extension of time for leave for judicial review.

17.  Since the applicant has not identified any error of law or procedural unfairness in the decision of the Judge, the intended appeal does not have any prospect of success.

8)  Disposition

18.  As the intended appeal is unarguable, it would be futile to give an extension of time. Accordingly, we dismiss the applicant’s summons filed on 25 November 2022.

19.  We would also (according to the applicant’s request for dismissal of appeal) dismiss the applicant’s summons filed on 25 November 2022.