RE SHARMA SONU

CAMP 178/2021

[2021] HKCA 1566

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 178 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 2320 OF 2018)

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

Introduction

1.  This is an application for leave to appeal out of time against the decision of Deputy High Court Judge Bruno Chan (“Judge”) on 4 June 2020[1] dismissing the applicant’s application for leave to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”) dated 20 September 2018. In that decision, the Board upheld the decision of the Director of Immigration (“Director”) dated 10 February 2017 rejecting the applicant’s non-refoulement claim.

2.  On 11 May 2021, the Judge refused to grant an extension of time for the applicant to appeal against the Judge’s decision of 4 June 2020.

Background

3.  The applicant is a Nepalese national. He arrived in Hong Kong via Lo Wu Control Point on the strength of his passport on 25 January 2015, and lodged his non-refoulement claim the same day. His was based on the fear that, if he returned to Nepal, he would be harmed or even killed by the Maoists there because he had refused to be recruited by them. The factual background of his claim was summarized at [8] of the Board’s decision dated 21 July 2015.

4.  By two notices of decision dated 2 April 2015 and 10 February 2017 respectively, the Director assessed the applicant’s claim on all applicable grounds and determined it against him. The former covered BOR 3 risk,[2] persecution risk[3] and torture risk;[4] the latter covered BOR 2 risk.[5]

5.  The applicant instituted two separate appeals to the Board against the Director’s decisions. On 21 July 2015 the Board dismissed the applicant’s appeal against the Director’s decision dated 2 April 2015. The applicant applied to the Court of First Instance (in HCAL 139/2015) for leave for judicial review but, on 16 February 2016, Fung J refused to grant leave.

6.  Subsequently, on 20 September 2018 the Board dismissed the applicant’s appeal against the Director’s decision dated 10 February 2017, without a hearing.

The Judge’s decisions in the court below

7.  On 22 October 2018, the applicant sought leave from the Court of First Instance to apply for judicial review against the Board’s decision of 20 September 2018. However, the applicant subsequently filed an affirmation on 26 May 2020, in which he requested to withdraw his judicial review application and stated that he wished to return to Nepal and no longer had any issue with the Board’s decision.

8.  As a result, following consideration of the documents only, on 4 June 2020 the Judge dismissed the application for leave to apply for judicial review. The Judge did not consider whether there was any procedural unfairness or errors of law in the Board’s decision of 20 September 2018, in light of the applicant’s request to withdraw the application for leave to apply for judicial review.

9.  More than 6 months later, on 17 December 2020, however, the applicant took out a summons to seek an extension of time to appeal against the decision of the Judge.

10.  The Judge heard the summons on 28 April 2021. At the hearing, the applicant stated that although he had previously intended to return to Nepal, his problem seemed to have happened again in Nepal and his life would still be in danger, and that therefore he needed to stay in Hong Kong. He also stated that he wished to appeal after seeking legal advice.

11.  In his decision dated 11 May 2021,[6] the Judge stated that a change of mind about one’s legal proceedings cannot be accepted as a valid reason for the applicant’s 6-month delay in seeking to appeal, and that the applicant did not put forward any proper or valid grounds of appeal or any particulars of errors in the Judge’s decision of 4 June 2020 or why that decision was unfair or unreasonable. As such, the Judge did not see any reasonable prospect of success in the intended appeal, and refused to grant an extension of time and dismissed the summons accordingly.

The renewed application before this Court

12.  On 20 May 2021, the applicant took out a summons seeking leave from this Court to appeal out of time against the decision of the Judge dated 4 June 2020 dismissing the application for leave to apply for judicial review. In his supporting affirmation, he stated that the Judge failed to consider the significance and level of unfairness the lack of language assistance had caused to the applicant as a litigant, and that the law was not applied properly in the Judge’s decision.

13.  The applicant lodged written submissions for his application for leave to appeal out of time on 6 July 2021. In those submissions, he argued that the lack of legal representation and language assistance prejudiced his ability to present facts for his claim and was unfair because his rights were not fully explained to him. He also pointed out that he could not fill out a complicated appeal on his own without help, since English was not his first language.

Discussion

14.  In the present case, the Judge dismissed the application for leave to apply for judicial review, due to the applicant’s affirmation of 26 May 2020 in which he requested to withdraw his application and to close his case. The Judge effectively granted the applicant’s request.

15.  There was therefore nothing in the Judge’s decision of 4 June 2020 that the applicant could appeal against. The intended appeal in this case is clearly incompetent, and would be liable to be struck out: Re Ashiq Hussain [2021] HKCA 557. The Court of Appeal has inherent jurisdiction to strike out an incompetent appeal.

16.  The applicant could not challenge the Judge’s decision of 4 June 2020, which was made pursuant to his own request, without obtaining leave to withdraw his request for withdrawal and without having that decision set aside. In the circumstances, the applicant’s summons of 20 May 2021 should be struck out.

17.  For these reasons, we strike out the summons dated 20 May 2021.