BAL TAMANG CHANDRA BAHADUR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1335/2020

[2024] HKCFI 66

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1335 of 2020

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of the documents only;            or
	consideration of the documents and the Applicant being absent in open court;

1.  Extension of time to apply for leave for Judicial Review be refused; and

2.  Leave to apply for Judicial Review refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 29 June 2020 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board /  Non-refoulement Claims Petition Office (the “Board”) dated 5 September 2019 (the “Decision”) refusing his late filing of Notice of Appeal (“NOA”) against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 22 February 2019 (the “Notice”).    

2.  The Applicant is a Nepalese national.  He entered Hong Kong on 18 April 2013 as a visitor and was permitted to remain until 25 April 2013.  He overstayed and surrendered to the authorities on 15 January 2014.  On 4 August 2015, he raised a non-refoulement claim.  In due course, his non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism, namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4].  His claim was dismissed by the Director’s Notice.  He lodged his NOA against the Director’s Notice.  But the Board refused to accept his late filing.  He now applies for leave to apply for judicial review of that Decision.

3.  There are two late events: (1) the late filing of the NOA which is the subject matter of the Decision which the Applicant seeks to judicially review; and (2) the late application for leave to apply for judicial review of that Decision.  The Applicant has two hurdles to overcome.  He has to obtain leave to file the leave application out of time (the second hurdle); and, if successful, obtain leave to apply for judicial review by showing that the Decision refusing his late filing of the NOA is somehow unjustified (the first hurdle). 

4.  The Applicant was detained under the Immigration Ordinance (the “Ordinance”) pending removal from Hong Kong.  That was the position at least as at 13 November 2023 according to a letter from the Department of Justice.  An oral hearing on 4 December 2023 was scheduled for hearing his leave application.  The notice of hearing sent to him care of Tai Tam Gap Correctional Institution was returned undelivered indicating that he had been released.  Another notice was sent to him by post to his last known address obtained from the Immigration Department, which was presumably provided by the Applicant upon his release.  That notice was not returned through the course of post.  However, the Applicant did not appear at the hearing.  There was nothing to suggest he had not received the notice.  Having considered the nature of the application and issues raised, the Decision, the papers, and all the circumstances, the Court considered that the leave application may be justly determined on paper without an oral hearing.

The late leave application

5.  The leave application was filed more than nine and half months after the date of the Decision sought to be reviewed.  Pursuant to section 21K(6) of the High Court Ordinance and Order 53, rule 4(1) of the Rules of the High Court, it was made more than six and half months out of time.  Leave to file the leave application out of time is required.

6.  In AW and Director of Immigration and William Lam[5], the Court of Appeal held that the following factors are relevant in determining whether to grant leave to file an application for leave to apply for judicial review out of time: (1) length of the delay; (2) explanation for the delay; (3) merits of the substantive application; (4) prejudice to the applicant if leave is refused vis-à-vis that to the respondent and public administration if leave is granted; and (5) whether the application raises any questions of general public importance, and whether those questions are likely to have to be resolved by the courts in any event.  Usually, the first three factors are most crucial and determinative.  If the sum total of these three factors are in favour of grant of extension, the court could be more relaxed in the remaining two.  Conversely, if it is against the grant of extension, there is no need to consider the remaining two factors.  However, where an applicant is many months out of time, leave may be refused “however strong the complaint might otherwise be”, see  Po Fun Chan v Winnie Cheung[6], per Litton NPJ.  

7.  The delay in this case is so substantial that leave may be refused on this ground alone, unless the Applicant has a reasonable and credible explanation for the delay.  Such substantial delay suggests that the Applicant does not have any genuine intention to prosecute his application and that the application may be an abuse of proceedings.  The Applicant gave no explanation for the delay.  Nevertheless, out of abundance of caution, the Court proceeds to assess the prospect of success in the proposed judicial review.

The Applicant’s case

8.  Having regard to the issue raised by this leave application, the Applicant’s case for non-refoulement protection is of little significance.  It is summarised for completeness. 

9.  The Applicant is a Nepalese, now aged 39.  He claimed he was kidnapped in late 2006 by a Maoist rebellious group known as the “Forum” and trained to fight for the Forum.  He managed to escape from the training camp one night and took refuge in his friend’s house, around 15 to 20 km away.  After staying there for three days, he moved to Kathmandu to reside with that friend’s relative.  While in Kathmandu, his father told him that the Forum people were looking for him and claimed that he had leaked information about the location of the training camp, the extortion and kidnapping committed by the Forum.  The Forum people also looked for him in Kathmandu, but he managed to avoid them by changing his location.  In 2007, he moved to Jammu, India where he lived peacefully for a year.  He returned to Nepal in 2008 to apply for a passport.  Then he went back to India and stayed there until 2012 when he returned to Kathmandu briefly.  Then, he flew to Hong Kong in April 2013 to seek protection.  He maintained contact with his parents in Nepal who told him that the Forum people continued to look for him at his home about twice or thrice per month.  In gist, he claimed that he would be harmed by the Forum if returned to Nepal because they believed he had leaked information about the Forum.  He does not consider he could avoid the Forum by internal relocation.

The finding of the Director

10.  The Director found that the risks of harm from the Forum were low.  The Forum people never attacked the Applicant while he was at the training camp and they never managed to find him after his escape.  As they were still looking for him at his home, this showed that they were unaware of the fact that he had left Nepal.  Hence, the Forum is not as powerful or well-connected as the Applicant feared.

11.  On the basis of authoritative and credible Country of Origin Information, the Director accepted that the Nepalese police force had made significant progress in improving its effectiveness.  Further, there has been a change in the political scene.  The Maoist party has ceased terrorism activities and many of its members had been elected to the parliament.  It is no longer designated as a terrorist organisation.  The Nepalese government have no reason to deny the Applicant protection.  The Director considered adequate state protection would be available to the Applicant if he returns to Nepal.  Further, the Director found the Applicant could relocate to other parts of Nepal such as Dhangarhi or Dharan to negate the perceived risks and being an able-bodied adult it would not be unreasonable to expect him to relocate.  Hence, the Director issued the Notice refusing his claim for non-refoulement protection.

The relevant legal provisions relating to late filing of NOA

12.  Under the non-refoulement protection regime, a claimant aggrieved by the decision of the Director may appeal that decision by filing a NOA with the Board within 14 days after the notice of decision has been given to him: Section 37ZS(1) of the Ordinance and Paragraph 8.1 of the Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme (the “Petition Guide”).  Failing that, he may also make a late filing, pursuant to Section 37ZT(1) of the Ordinance, by giving a statement of the reasons for his failure accompanied by all available supporting evidence.  For that purpose, Section 5 of the NOA form is designed as an application for late filing for the claimant to state the reasons for his failure when filing the NOA. 

13.  Section 37 ZT(2) of the Ordinance and Paragraph 9.2 of the Petition Guide mandate the Board to decide, as a preliminary decision without a hearing, whether to allow the late filing.  The subsection also requires the Board to only take account of the statement of reasons stated in Section 5 of the NOA, the supporting evidence relied on and any other relevant matters of fact within the knowledge of the Board.  Under Section 37ZT(3) of the Ordinance and Paragraph 9.3 of the Petition Guide, the Board may allow the late filing if the claimant has provided sufficient evidence in writing to satisfy the Board that he had exercised all due diligence to file the NOA within time but failed because of circumstances beyond his control. 

The finding of the Board

14.  The Director’s Notice was sent to the Duty Lawyer Service then acting for the Applicant on 22 February 2019.  In Paragraph 39 of the Notice is a statement informing the Applicant that if he is aggrieved by the decision in the Notice, he must file his NOA with the secretariat of the Board within 14 days after the date of the Notice.  The address of the secretariat was given in that paragraph.  A blank copy of the NOA was also annexed to the Notice.  The completed NOA dated 12 March 2019 was lodged with the secretariat on the same date.

15.  The explanation for the late filing as stated by the Applicant in Section 5 of the NOA is that the Notice was given to him on 27 April 2019.  That date is in fact six weeks after the NOA was received by the secretariat.  That date is obviously an error and incorrect.  On the information known to the Board, the Notice was given by the Director to the Duty Lawyer Service then representing the Applicant on 22 February 2019.  The Board was satisfied that there was no delay on the part of the Director in sending the Notice to the Applicant via the Duty Lawyer Service which was representing him then and which received the same on his behalf.  Having rejected the Applicant’s explanation and allowing two days for delivery by post, the Board found the NOA was filed one day late.  As the Applicant’s explanation was rejected, there was no explanation for the delay.  After directing itself to Section 37ZT of the Ordinance, the Board came to the conclusion that there was no good reason for the delay.  There was no basis on which the Board may exercise any discretion to allow the late filing of the NOA which was therefore refused.

Legal principles applicable to judicial review

16.  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 feasibility of internal relocation and in this case, circumstances relating to late filing of NOA.  The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality:  see Nupur Mst v Director of Immigration[7].

Grounds for judicial review

17.  The grounds of judicial review as stated in his Form 86 are that the Director reached the Decision wrongly, the Decision is unreasonable and unfair, and that his right to life is protected.  He gave no particulars as to what is wrong with the Decision, what is unreasonable and unfair. In the absence of specific grounds of application or grounds with sufficient particulars, the Court could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision. 

Discussion and conclusion

18.  The issue raised by this leave application is the propriety of the Board’s Decision refusing the Applicant’s late filing of the NOA, not the merits of his non-refoulement claim.  Hence, merits of his non-refoulement claim is totally irrelevant. 

19.  For reasons as stated in Paragraphs 14 and 15, the Board found the Applicant had provided no explanation for the delay, albeit of only one day.  He has provided no evidence in writing which could satisfy the Board that he had exercised all due diligence to file the NOA within time but failed because of circumstances beyond his control.  Though not so expressly mentioned, the Board obviously had no knowledge of any other relevant facts which would support his late filing.  The Board had directed its mind to the relevant provisions under the Ordinance relating to late filing of the NOA.  It applied the law correctly to the facts it found and came to the inevitable conclusion that the Applicant had failed to satisfy the Board that he had exercised all due diligence to file the NOA within time but failed because of circumstances beyond his control.  

20.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles relating to late filing of NOA; correctly identified the issues raised by the late filing and observed a very high standard of fairness.  The Board made its decision in accordance with Section 37ZT.  The Decision is one of finding of fact and applying the law to the facts.  The facts found or relied on by the Board are incontrovertible.   In any event, such finding is solely within the province of the Board to make which the court in a judicial review will not interfere save for errors of law, procedural unfairness and irrationality.  This Court could not detect any error of law in the Board’s finding of fact or its application of the law to the fact.  This Court could find no procedural unfairness at any stage of the proceedings. The Decision does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  The Decision is utterly without fault.  The proposed judicial review has no realistic prospect of success.  For the above reasons, leave to apply for judicial review is refused.

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1