RE GURUNG CHETBAHADUR

HCAL 2545/2018

[2022] HKCFI 1447

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2545 OF 2018

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D E C I S I O N

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Introduction

1.  This is the Applicant’s application by summons for extension of time to appeal the order of Deputy High Court Judge P. Li (“DHCJ Li”) dated 10 February 2022 (the “Order”) refusing to grant him leave to apply for judicial review of the decision of the Torture Claims Appeal Board/ the Non-Refoulement Claims Petition Office (the “Board”). On 12 April 2022, 61 days after the Order was made, the Applicant applied by summons for leave to appeal the Order out of time.

The Law

2.  Under Order 53, rule 3(4) of the Rules of the High Court, where an application for leave to apply for judicial review is refused by a judge, the applicant may appeal against the judge’s order to the Court of Appeal within 14 days after such order. The Applicant is 47 days out of time, which is substantial in the context of a 14-day period of appeal.

3.  In Jagg Singh and Torture Claims Appeal Board/non-Refoulement Claims Petition Office[1], the Court of Appeal held that in considering whether to extend time for appealing a decision refusing leave to apply for judicial review, the court will take into account: (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. Length of delay and explanations for the delay.

Length of delay and reasons for the delay

4.  By 24 February 2022, the time to appeal has expired. The application for leave to appeal is 47 days out of time. The breach is substantial in the context of a statutory time limit of 14 days.

5.  In his supporting affirmation filed on the same date as his summons, he advanced the following reasons for applying for leave to appeal the Order out of time:

“I am the Applicant herein. I am presently detained by the [Immigration Department] authorities. The decision made by the High Court Judge P Li has been reached unfairly without allowing me an opportunity to clarify my case and situation in my country. I did not receive any correspondence from the Court regarding the hearing date due to that I was not able to attend the hearing. Moreover, the Social visits & Legal Visits were temporarily suspended by the Immigration owning to the present pandemic situation. Exchange of correspondence by post were also taking longer than one can assume and that is because of the security measures as every post is thoroughly checked by the authorities to ensure no contraband’s were being exchanged. Due to which I was unable to file the Appeal to Court in time (i.e. 14-days). In the Circumstances, I request extension of time be granted to me to file an appeal.”

The Applicant is in custody in Castle Peak Bay Immigration Centre. In short, his explanation for the delay is the delay in communication and suspension of social visits and legal visits caused by the pandemic. His ground of appeal is procedural unfairness in being denied the opportunity to clarify his case and situation in his country.

6.  He also made a vague explanation for the delay or a vague complaint of unfairness by alleging that he did not receive the notice of hearing and hence could not have attended the hearing to clarify his case. He did not give particulars whether his failure to receive the notice of hearing was because he had changed his address or was because he had been held in custody. In either event, he has the obligation to inform the court of his change of address, including an involuntary change occasioned by his being put in custody, and to bear the consequence of his failure to do so: Karamjit Singh[2]. But, for expediency reasons, I do not find it necessary to explore the true reason for his non-receipt of the notice of hearing. I accept without question that there may be delays in communication caused by the pandemic. I give him the benefit of doubt that the delay of 47 days under the pandemic situation and the fact that he is in custody excusable and proceed to deal with the substance raised by his application.

Prospect of success of the intended appeal

7.  The Applicant’s ground of appeal as stated in his summons is that he wished to advance “a new sole ground of appeal”. In his supporting affirmation, he elaborated this new sole ground as “the High Court Judge P Li has been reached unfairly without allowing me an opportunity to clarify my case and situation in my country”. That is the sole substance of his complaint. The Order was made by way of paper determination without a hearing. It is true that the Applicant had no opportunity to make submissions to DHCJ Li about his grounds for judicial review or to clarify his case and situation in his home country. All these are accepted.

8.  In fact, a hearing had been scheduled for the Applicant to appear before the court on 3 January 2022, but he did not appear. A notice of hearing had been sent to him by post on 15 December 2021 to his address which had been last used by him on 26 February 2021. He did not attend the hearing. It is not known whether that was because he had moved or been held in custody when the notice was issued or was because of some other innocent reasons. Putting aside the question whether the Applicant has to bear the consequence for his non-receipt of the notice of hearing, as a matter of law it is not impermissible for an application for leave to apply for judicial review to be determined on paper without an actual hearing. There is no procedural unfairness unless the Applicant is thereby prevented from pursuing his case the way he has advanced it.

9.  It must be borne in mind that the role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The function of the court in a judicial review is to scrutinize the Board’s decision and intervene only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[3]. Given the limited role of the court in an application for leave to apply for judicial review, absent specific grounds or grounds with sufficient particulars, the Court could only focus its attention on possible criticism of the Decision on the basis of error of law, unreasonableness and irrationality.

10.  Other than complaining about the dismissal of his appeal and rejection of his application for non-refoulement protection, the Applicant advanced no grounds for his application for leave to apply for judicial review in his Form 86 or supporting affirmation. Specifically, he had mentioned nothing about “a new sole ground of appeal” or the need to clarify his case and situation in his country. Under such circumstances, a critical scrutiny of the Board’s Decision may be effectively carried out by the Court in the Applicant’s absence. DHCJ Li considered it appropriate to do so without a hearing. That decision was un-reproachable. How can the Applicant now complain about unfairness for having been deprived of the opportunity to clarify his case and situation in his home country when he had not put forward those specific grounds in his application?

11.  Furthermore, even if he had advanced those grounds in his application, the result would still be the same. It is for the Board or the Director to make finding of the factual basis in support of the Applicant’s application for non-refoulement protection and not for the court in a judicial review of the Board’s decision. The Board has set out the Applicant’s case and its finding. These are succinctly summarized in paragraphs 2 to 8 and paragraphs 11 and 12, respectively, of the Form Call-1. In gist, his claim for non-refoulement protection is based on his fear of being harmed or killed by a rival political party because of his support for the Unified Marxist-Leninist Party. The Board found the Applicant had fabricated his political involvement, his kidnap and the pursuit by members of the rival political party. It also found the political situation in his home country, Nepal, had changed for the better since 2017. The risk of harm had reduced substantially. There is no real risk if he returns to Nepal. As a result, the Board found that the Applicant had failed to prove the factual basis in support of his claim for non-refoulement protection and dismissed his appeal. All these are finding of facts solely within the province of the Board.

12.  In paragraphs 15 to 17 of the Form Call-1, DHCJ Li held:

“15. This court decided to deal with this claim on paper. In judicial review, this court is to decide whether there is any error in law and procedure. Whether the TCAB decision is irrational. The finding of facts is the duty of the TCAB. In general, this court would not interfere.

16. The adjudicator had analyzed the evidence carefully. He pointed out that the applicant had exaggerated his political involvement. The applicant’s uncertainty about UML, and the political development in Nepal show4ed that he was not active in politics. I agree with the adjudicator.

17. In my judgment, there is no error of law or procedure. The decision of the TCAB is reasonable.”

13.  I have carefully examined the Form Call-1. I am satisfied that DHCJ Li had rigorously examined the Decision, the papers and the evidence with anxious scrutiny. I am also satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the issues; the burden of proof and standard of proof; and observed a very high standard of fairness. DHCJ Li was satisfied that the Board’s Decision had not been vitiated by errors of law, procedural unfairness or irrationality; the intended judicial review had no prospect of success; and made the Order. The Order accords with the established legal principles applicable to judicial review. I also agree with that conclusion.

14.  Now, apart from a vague suggestion of “clarify my case”, the Applicant gave no particulars as to what facts he wished to clarify and which had not been taken into consideration or had been ignored by the Board. He is not seeking to adduce fresh evidence about additional facts. The word “clarify” suggests that those facts were already before the Board and he wished to highlight them for DHCJ Li’s consideration. On the evidence, the Board found the Applicant untruthful and rejected his evidence. These are finding of fact solely within the province of the Board. As the function of the court in a judicial review is limited to intervening only for errors of law, procedural unfairness or irrationality, it is not open to DHCJ Li to intervene the Board’s decision by exploring into those “clarifications”. In other words, even if the Applicant an opportunity to address or had actually addressed DHCJ Li about those “clarifications”, it would not have been open to the court to intervene, unless the Decision was reached as a result for errors of law, procedural unfairness or was irrational. The Applicant has failed to show any such vitiating elements in the Decision. Thus, with or without being afforded him the opportunity to make such “clarifications” before DHCJ Li, the Applicant’s intended judicial review had no realistic prospect of success. And for that reason neither has his intended appeal against DHCJ Li’s decision in refusing his application for leave.

Prejudice to the respondent

15.  The prejudice to the proposed respondent and to public administration is obvious, if a challenge is allowed to proceed in the absence of an arguable ground of appeal with some prospect of success. The intended appeal is an abuse of legal process and would encourage other claimants to indulge in such abuse. It would cause unnecessary waste of judicial and public resources and delay the genuine non-refoulement claimants’ access to the court. It would render it difficult for the Director to perform his duty of maintaining immigration control. Above all, it would make it difficult or unduly burdensome for Hong Kong to honour its international obligations under the various conventions to protect people from persecution, torture and other cruel, inhuman or degrading treatment or punishment. This application does not raise any questions of general public importance. It may subject the whole system of non-refoulement protection to serious abuse to the prejudice of Hong Kong.

Conclusion

16.  Even condoning his delay, the Applicant’s intended judicial review and appeal has no prospect of success. It is a clear abuse of legal process to challenge a decision without proper and arguable grounds of appeal and which is doomed to fail. To allow such a challenge to proceed when it is already out of time would encourage other claimants to indulge in such abuse and create prejudice to the intended respondent and to the administration. For all these reasons, the application for extension of time to appeal is refused.