RE THAPA DINESH BAHADUR

HCAL 457/2019

[2021] HKCFI 3374

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 457 OF 2019

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D E C I S I O N

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1.  The applicant is a national of Nepal.[1] He sneaked into Hong Kong on 15/4/2009. He was arrested by the police on the same day. He filed the non-refoulement claim in this case on 18/4/2009.

2.  The applicant feared that he would be harmed or killed by the Maoist if refouled. The reasons being that he refused to join the Maoist and disagreed with their political stance. He refused to donate money to them.

3.  He was a member of the Nepali Congress Party after he graduated from school. He asserted that he was assaulted by the Maoist in Nepal in 2004. He fled to India and another district in Nepal. He returned home a few weeks later. He was safe until 2007. He was detained again in 2007. He was assaulted by the Maoist. He recovered in 2 weeks. He fled to his in-laws in another district in Nepal. He was safe and his family was not assaulted until 2009. In 2009, he heard that the Maoist were still looking for him. He thus fled to Hong Kong via China. He left Nepal on 20/3/2009 by air. He later sneaked into Hong Kong by boat.

4.  The Director rejected his claim on 20/5/2015 and 18/4/2017. [2] The TCAB rejected his appeal on 23/2/2017 and 15/2/3019.[3]

5.  The TCAB found that the risk of ill-treatment was unlikely to materialize. The Maoist did not take any action to locate him. He was safe for the 2 years prior to leaving Nepal. There was no reason for the Maoist to target him personally. They could have put pressure on other young men and teachers in Nepal to adopt their ideologies. There was reasonable State protection. There were reasonable options for internal relocation.

6.  On 18/2/2019, the applicant applied for leave for judicial review of the TCAB decisions.

7.  On 9/2/2021, Deputy Judge Pang refused leave for judicial review. The Judge opined that the leave application in relation to the two decisions of the Director and the first decision of the TCAB was seriously out of time. There was no application for extension of time. The Judge found no good reason to extend the time for the leave application. The Judge pointed out that the TCAB was entitled to reject his claim after analysis of the evidence. There was no additional evidence to support the claim in relation to the claim based on BOR 2. The Judge agreed that there was no reason for the Maoist to target him after so many years.

8.  The Judge found no error of law or procedure. The decisions were rational. There was no reasonable prospect of success in the intended appeal.

9.  The applicant filed a summons on 25/2/2021 for extension of time to appeal against the decision of Deputy Judge Pang. He was about 2 days out of time.

10.  In his affirmation, the applicant did not specify any error in the TCAB decisions and the decision of Deputy Judge Pang.

11.  In considering whether to extend time for appeal against the refusal of leave to apply for judicial review, this court will take into account: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted.[4]

12.  The applicant is out of time for about 2 days. It is not significant delay. However, he did not give any explanation for the delay. I also consider the merits of the intended judicial review which is an important issue at this stage [5].

13.  As set out above, the reasoning of the TCAB decisions is justified. The applicant has not established that the risk of harm would materialize. I agree that there is reasonable State protection and relocation options. The intended appeal is of no merit.

14.  In the circumstances, I refuse the application for extension of time to appeal.