RE GURUNG MIN BAHADUR

CAMP 9/2018

[2018] HKCA 226

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 9 OF 2018

(ON AN INTENDED APPEAL FROM HCAL NO 343 OF 2017)

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JUDGMENT

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Hon Lam VP (giving the Judgment of the Court):

1.  This is an application for an extension of time to appeal against the decision of P. Li J on 12 January 2018 refusing leave to the applicant to apply for judicial review. The applicant is a Nepalese national who arrived in Hong Kong on 1 January 2014 with permission to remain until 8 January 2014. He overstayed. He surrendered to the police on 22 May 2014 and was arrested on the same date. He lodged a non-refoulement claim on 24 May 2014. His claim was based on the risk of harm from a man called Raj Ghale (“Raj”), whose brother was seriously injured by the applicant resulting from a fight over a boundary dispute. Raj was said to be a district political leader with influence and power.

2.  By the Notice of Decision dated 8 April 2016, the Director of Immigration (“the Director”) decided against the applicant’s claims.  It was assessed that the fear of risk of being harm would not likely be materialized.  The state protection and internal relocation were considered viable.  The Director also considered that the BOR 3 risk, the persecution risk and the torture risk would not warrant the non-refoulement protection in favour of the applicant.  By the Notice of Further Decision dated 6 April 2017, the Director also considered the BOR 2 risk and decided against the applicant in that respect.

3.  The applicant appealed to the Torture Claims Appeal Board (“the Board”).  After a hearing held on 12 April 2017, the Board dismissed the appeal (“the Board’s Decision”).  The Board found that the applicant was not credible and his evidence relating to the possible ill-treatment upon return to Nepal was based entirely on his own speculation.  Having assessed the persecution risk, the BOR 3 risk, the BOR 2 risk, and the torture risk, the Board concluded that the applicant failed on all applicable grounds for non-refoulement. 

4.  The intended judicial review was in respect of the Board’s Decision.  The Form 86 filed by the applicant on 29 June 2017 did not contain any ground for judicial review.  In his supporting affirmation dated 29 June 2017, the applicant deposed that he had not given chance to submit additional facts for the BOR 2 claim.  In the 6-page exhibit marked as “MS”, the applicant advanced the following grounds for judicial review:

(1)  The Board had failed to carry out sufficient search and inquiry into the Country of Origin Information (“COI”);

(2)  The Board cherry-picked information in the COI;

(3)  The Board erred in finding that the risk and threat were the applicant’s own speculation;

(4)  The Board misdirected itself as to the meaning of state protection and he had not been given a chance to provide additional information regarding the BOR risk;

(5)  He was not able to provide additional information during the hearing before the Board because of the misinterpretation of the interpreter;

(6)  The Board erred in failing to appreciate that the COI was selective and failed to address negative aspects;

(7)  The Board erred in finding that Raj was not powerful and influential within Nepalese government and authorities;

(8)  The Board failed to appreciate the fact that Raj was a member of a terrorist political party in Nepal and erred in finding that relocation was a viable option;

(9)  The Board erred in finding that the dispute between the applicant and Raj was a private dispute;

(10)  The Board ignored the fact that Raj and his gang attacked the applicant’s home and elicited from his brother-in-law information regarding his whereabouts;

(11)  The Board failed to appreciate that the state could not render protection for him against the powerful people.

5.  After summarizing the background of the case and giving consideration to the decisions of the Director and the Board, the Judge gave the following reasons in refusing leave at [9] to [13] of the CALL-1 Form:

“ 9. The applicant filed this leave application on 29 June 2017. His application for legal aid was rejected on 11 August 2017.

10. This court held a hearing on 8 August 2017. The applicant confirmed that the land dispute concerned no political issue. R was still making enquiry on his whereabouts. He was in fear and could not rely on the institutions of Nepal.

11. This court allowed the applicant to submit further document. He finally submitted a document with English translation which purportedly was issued by the Ministry of Land Reform and Management of Nepal. I have considered the document. I do not think it can take the applicant’s case any further.

12. Having considered the decisions of the Director and the Adjudicator, I agree with their reasoning set out above. There is no error of law or procedure.

13. In my judgment, the Applicant’s claim is not reasonably arguable. There is no realistic prospect of success. I refuse leave for judicial review.”

6.  According to the court record, the Judge’s order was sealed on 16 January 2018.

7.  Pursuant to Order 53 Rule 3(4), the applicant had 14 days to lodge an appeal.  He failed to do so. By a summons dated 31 January 2018, he applied for an extension of time to appeal.  His application was supported by an affirmation dated 31 January 2018.  In the affirmation, it was deposed that he attempted to lodge the appeal on 29 January 2018 and that, according to his understanding, the appeal was made within time because the order was “still at the Court” on 16 January 2018.  The applicant did not include any draft Notice of Appeal in his affirmation.

8.  In his written submissions dated 22 February 2018, the applicant repeated the matters as stated in his supporting affirmation. 

9.  In Re Li Jing [2015] 2 HKLRD 933, it was held that the time for lodging an appeal against the refusal of granting leave to apply for judicial review started to run from the date of the making of the order, not from the date when the sealed order was issued, nor from the date when the sealed order was sent.   Hence, the applicant’s “understanding” was wrong in law.  The time for lodging an appeal in this case expired on 30 January 2018.

10.  Though ignorance of the law is not generally an excuse for delay (see: Chen Cheryl Deanna v Chen Pak Yin Stella, HCMP 1061/2017, 4 August 2017), the delay in the present case is a short one.  Notwithstanding so, 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; Chu On Fong Winter v The Appeal Panel (Housing) HCMP 982/2017, 20 July 2017; Islam Raja Rais v Director of Immigration HCMP 881/2017, 26 June 2017. The crucial consideration in this application is whether the applicant can show that there is a reasonable prospect of success in the intended judicial review.  After reviewing the materials placed before the Judge, we agree with the Judge that the applicant’s claims are not reasonably arguable and the intended judicial review has no prospect of success. 

11.  Having read the full decision of the Board, it is plain and clear that the applicant’s case of the risk of harm had been carefully considered and justifiably rejected.  As this Court has repeatedly observed, although the court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of issue at hand, the primary decision-maker is still the Board. Determination of merits of the case is primarily a matter for the Board, whose role will not be usurped by the court.  See:  Re Zunariyah [2018] HKCA 14, Re Qadir Sher [2018] HKCA 160, Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152, Re Rizwan alias Rizwan Gulistan [2018] HKCA 162, and Re Masoom Parvez [2018] HKCA 163. 

12.  As regards the applicant’s inability to provide additional information to the Board at the hearing, we note at paragraph 68 of the Board’s decision that the applicant did answer questions asked by the Board and the Board treated such answers as supplemental evidence of the case.  The Board had carefully considered and dealt with the land “deed” (which was referred to as “the document” in the Board’s decision) and the surveyor report provided by the applicant.  As indicated in paragraph 11 of the CALL-1 form, the Judge had allowed the applicant to submit further document, which the applicant did.  The Judge considered the document and found that it could not take the applicant’s case any further.  Having read the document, we agree. In such circumstances, there is no basis to say that the applicant had not been given an opportunity to provide additional information.  We do not see anything amiss in the process.

13.  Having read the full decision of the Board, we take the view that it was perfectly open to the Board to come to its conclusion on the lack of real risk.  Like the Judge, we do not see any errors of law or proceedings in the proceedings before the Board.  Nor do we see any reasonable basis to challenge the fairness of the process.  As we said, we agree with the Judge that leave to apply for judicial review should not be granted.

14.  For these reasons, we do not see any prospect of success in the intended appeal.  No extension of time should be granted for a hopeless appeal.  The summons of 31 January 2018 is therefore dismissed.