RE GURUNG INDRA KUMAR

HCAL 151/2018

[2019] HKCFI 2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 151 OF 2018

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D E C I S I O N

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1.  On 11 June 2019 Deputy High Court Judge Josiah Lam refused to extend time for the applicant’s late application for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“the Board”) in dismissing the appeal regarding his non-refoulement claim upon finding no good reason for his delay of almost five months with his leave application, that none of the grounds put forward by him was reasonably arguable for his intended challenge, that there was no error of law or procedural unfairness in the process before the Board or its decision, and that there was no reasonable prospect of success in his intended application.

2.  The applicant now by a summons dated 24 June 2019 seeks leave to appeal against that decision which is considered as interlocutory in nature: see Kwok Cheuk Kin v Leung Chun Ying [2018] HKCA 419, and for which section 14AA of the High Court Ordinance, Cap 4 stipulates that no appeal shall lie to the Court of Appeal from the interlocutory judgment or order of the Court of First Instance in any civil cause or matter unless leave to appeal has been granted. 

3.  In considering whether to grant leave to appeal, section 14AA(4) provides that leave shall not be granted unless the Court hearing the application for leave is satisfied that:

(a)  the appeal has a reasonable prospect of success; or

(b)  there is some other reason in the interests of justice why the appeal should be heard.

4.  The threshold test for reasonable prospect of success was given by Le Pichon JA in SMSE v KL [2009] 4 HKLRD 125 when her Ladyship stated [17]:

“ The section requires that the court be satisfied that the appeal has a reasonable prospect of success or there is some other reason in the interests of justice why the appeal should be heard before granting leave. Reasonable prospects of success involves the notion that the prospects of success must be ‘reasonable’ and therefore more than ‘fanciful’, without having to be ‘probable’.”

5.  In the present case, the applicant did not provide any draft or proposed grounds of appeal in his summons, but in his written submission he stated a single ground essentially that it was wrong for the Board to dismiss his appeal on the basis that he was not a target of the political party UCPN (Maoist) and that his family in Nepal was never harmed and therefore he would not be at risk of any harm from the UCPN members if refouled to Nepal, when according to him the COI show that the conflicts in Nepal between UCPN and the government have not yet been resolved, and that the state has failed to protect its civilians due to corruptions that the Board’s assessment of his claim had not been done thoroughly or accurately.    

6.  While it is clear that the applicant’s complaint was directed at the Board, I am prepared to take it that it also represents the ground for his intended appeal against the Court’s decision in which he argues that it was wrong for Deputy Judge Lam to accept such finding of the Board in refusing to extend time for his late application for judicial review.

7.  The applicant’s case for his non-refoulement claim as recorded in the Board’s decision was that in Nepal between 2009 when he was still a student and 2012, he was being harassed and threatened by certain members of UCPN in his home village to join their party but was never harmed physically, and in order to avoid such threats and harassment that in January 2014 he departed Nepal for Hong Kong where he overstayed, and upon his subsequent arrest by the police in June 2014 he then raised his non-refoulement claim for protection.

8.  After his claim was rejected by the Director of Immigration, heappealed to the Board, and in his oral hearing before the Board, he confirmedthat he had never been physically harmed by the UCPN members at any timein Nepal, and that it was only his own speculation that they would harm him upon his return to Nepal (see [44] – [51] and [59] of the Board’s decision).

9.  The Board then considered the relevant COI as to the latest political situation in Nepal which show that the insurgency led by the Maoists had since ended in a peace accord with the government and that UCPN had subsequently become a party in the Constituent Assembly that any fear of riskof harm to the applicant was no longer considered relevant ([65] – [68]).

10.  In addition, the Board also found that with state protection and reasonable internal relocation within Nepal available that the applicant can safely move to other areas such as Kathmandu that it concluded that his claim failed on all applicable grounds.

11.  It was against these factual findings by the Board as to the applicant’s claim that the learned deputy judge found no error of law or procedural unfairness in the process of his appeal before the Board or in the Board’s decision, that none of his proposed grounds was reasonably arguable, and that there was no realistic prospect of success in his intended application that the learned deputy judge concluded that there was no good reason for the applicant’s substantial delay that extension of time for his intended application was refused.

12.  It is therefore clear to me that on the basis of the evidence and materials before the Court, Deputy Judge Lam was entitled to arrive at his decision, and that I do not find the applicant’s complaint reasonably arguable or that there is any reasonable prospect of success in his intended appeal, nor do I find any other reason in the interests of justice that his appeal should be heard.

13.  In the premises, it would be futile to grant leave for what appears to me a hopeless appeal, and accordingly I refuse the application and dismiss the applicant’s summons.