RE BARAILY BIKASH

CAMP 42/2022

[2022] HKCA 954

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 42 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO. 2653 OF 2018)

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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) :

I.  Renewed application for extension of time to appeal

1.  On 23 November 2018, the applicant issued his application for leave for judicial review by Form 86.  The applicant’s intended judicial review was against the decision of the Torture Claims Appeal Board (‘the Board’) dated 29 October 2018 dismissing his appeal against the decision of the Director of Immigration (‘the Director’) dated 8 June 2017 rejecting his non-refoulement claim based on Article 2 (‘BOR 2 Risk’) of section 8 of the Hong Kong Bills of Rights Ordinance, Cap. 383 (‘BOR’).

2.  In his decision of 8 June 2021, Judge To refused to grant leave to the applicant for judicial review.

3.  Under Order 53, rule 3(4) of the Rules of the High Court, the applicant had 14 days to appeal against the decision.  Being out of time for nearly one month, the applicant took out an application on 19 July 2021 before Judge P Li requesting an extension of time to appeal.  On 25 January 2022, Judge Li rejected the applicant’s application.  

4.  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.  On 7 February 2022 (late by four days), the applicant filed the present summons to make a further application to this Court for extension of time to 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, affirmation and written submissions, we are of the view that it is appropriate to determine the present application on paper without a hearing.

II.  Factual background

6.  The applicant is a national of Nepal. He entered Hong Kong illegally on 22 July 2009 and was arrested on the same day.  The applicant filed a non-refoulement claim shortly thereafter on the basis that he would be harmed of killed by members of the Terai Mukti Morcha Party as his father, who is a supporter of an opposing party Unified Marxist Leninist, had a land dispute with them. 

7.  The details of the applicant’s claim have been summarized by Judge To at [5] and [6] of the CALL-1 Form.

III.  The Earlier Decisions

8.  The Director had earlier decided against the applicant’s non-refoulement claim on 11 May 2015 based on BOR 3 (torture/inhuman treatment) risk, as well as other statutory and convention rights against torture and persecution (‘the Director’s Earlier Decision’).

9.  The applicant appealed against the Director’s Earlier Decision to the Board and attended an oral hearing on 16 May 2016.  The Board in its decision dated 7 June 2017 accepted the applicant’s evidence.  However, it did not accept the risk of harm from the land dispute amounted to torture risk.  In any event, it held that there was state protection available to the applicant and internal relocation was not unreasonable.

IV.   The Board’s Decision

10.  In the Board’s decision dated 29 October 2018, it found that there was no change of circumstances since its previous decision of 7 June 2017.  Therefore, the applicant failed to establish a personal and real risk of right to life upon his return to Nepal.

V.   Decisions of the Judge

11.  In his decision dated 8 June 2021, Judge To reviewed the Board’s two decisions.  He did not find any errors of law, procedural unfairness, unreasonableness or irrationality in the Board’s decision of 28 October 2018.  The Judge found that the applicant failed to show any reasonable prospect of success in the intended judicial review.   

12.  In his decision dated 25 January 2022, Judge P Li held that there was significant delay on the applicant’s part and rejected his explanation as pure speculation.  In any event, Judge P Li found there was no merit for the intended appeal.

VI.   Legal principles

13.  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.

VII.   Analysis

1)   Length of delay and reasons for the delay

14.  The applicant was late by about nearly one month when he filed his application for extension of time to appeal.  The applicant only explained in his summons and affirmation that he was unaware of the deadline to file an appeal and had difficulties due to language barrier.  We agree with Judge P Li’s analysis that the applicant’s delay is unjustified.

2)  Prospect of the intended appeal

15.  In the applicant’s affirmation, he complained that he was unable to understand the Court’s decision and the Board’s decision notwithstanding he understands English.  The applicant also complained the decisions of the Court were complicated with legal terms.  He further complained he was not provided with legal assistance.  In his written submissions, he stated there was a lack of arrangements from the Court to help him understand the decisions and that the Court was procedurally unfair by failing to provide him with such assistance which was procedurally unfair.

16.  The applicant’s written submissions contained general and bare assertions without any specific particulars.  These are not proper grounds of appeal.  As to the complaint of lack of translation service, the Court of Appeal has repeatedly emphasised that the high standard of fairness required by law would not entail interpretation service being made available to the claimants all the time as they desire: Re Gurung Sagar [2019] HKCA 658.

17.  In our judgment, the applicant does not have any prospect of success in his intended appeal.  Judge To had considered all the relevant matters including the merits of his case when he refused to grant leave for judicial review and dismissed his application.

18.  Since the applicant has not identified any error of law or procedural unfairness in Judge To’s Decision of 8 June 2021, the intended appeal cannot have any prospect of success.

VIII.  Disposition

19.  As the intended appeal is unarguable, it would be futile to give an extension of time.  Accordingly, we dismiss the applicant’s summons dated 7 February 2022.