RE GURUNG DILKUMAR

CAMP 549/2022, [2024] HKCA 950

On Appeal From [2022] HKCFI 3041

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 549 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 2361 OF 2018)

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J U D G M E N T

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Hon Au JA (giving the Judgment of the Court):

1.  On 28 December 2022, the applicant took out a summons to apply for leave to appeal against the order of Deputy High Court Judge KW Lung (“the Deputy Judge”) dated 20 December 2022 ([2022] HKCFI 3685) (“the EOT Decision”) refusing to grant him an extension of time to appeal against an earlier order of the Deputy Judge dated 25 October 2022 ([2022] HKCFI 3041) (“the Leave Decision”) refusing his application for leave to apply for judicial review.

2.  The intended judicial review was against the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”) dated 21 September 2018 (“the Board’s Decision”), dismissing the appeal against the decision of the Director of Immigration (“the Director”) dated 5 February 2018 rejecting the applicant’s non‑refoulement claim (“the Director’s Decision”).

3.  Having considered the documents, we are of the view that it is appropriate to determine this application on paper without a hearing pursuant to Order 59, rule 14A of the Rules of the High Court, Cap 4A (“the RHC”).

4.  Subsequently, this Court was notified by the Immigration Department on 13 September 2024 that the applicant had been removed voluntarily back to his home country.

BACKGROUND

5.  The applicant is a national of Nepal.  He last entered Hong Kong on 23 February 2014 as a visitor.  He did not depart and had overstayed.  He was arrested by the police on 16 August 2014.  By various written significations made in September 2014, he raised a non‑refoulement claim on the basis that, if refouled, he would be harmed or killed by his clients because he was unable to refund the service charge that they paid to a company where he used to work.  Factual details of the applicant’s claim were summarised by the Deputy Judge at [3] ‑ [4] of the Leave Decision.

6.  By the Director’s Decision, the Director rejected the applicant’s non-refoulement claim on all applicable grounds including torture risk[1], BOR2 risk[2], BOR3 risk[3], and persecution risk[4].

7.  The applicant then appealed the Director’s Decision to the Board.  On 21 September 2018, the Board dismissed the applicant’s appeal, and confirmed the Director’s Decision.  The Board’s reasons for its decision were summarised by the Deputy Judge at [8] ‑ [9] of the Leave Decision:

“8. The Board considered the relevant country of origin information (‘COI’) [57]-[71].  It proceeded to determine the issue of credibility.  It found that the core of the applicant’s claim lacked credibility [74].  The Board refused to accept the applicant’s explanation as to why he did not report the company fraud to the police [75]-[76].  It also observed that the applicant gave inconsistent evidence in relation to the background of his clients [77]-[81].  Further, the Board rejected the applicant’s assertion that he came to Hong Kong with a specific purpose to seek protection [82].

9.  n assessing the individual grounds, the Board found that the dispute was a private one without state involvement [86]; that his minor injuries did not attain a minimum level of severity [89]; and that the alleged harms, if any, were localized [97‑[98].”

8.  On 26 October 2018, the applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision.  No ground of review was given in the Form 86 or his supporting affirmation.

THE DEPUTY JUDGE’S DECISION

9.  As the applicant did not request an oral hearing, the Deputy Judge determined his application on paper.  On 25 October 2022, the Deputy Judge refused to grant extension of time to the applicant and dismissed his application for leave to apply for judicial review.  His reasons were stated at [13] ‑ [19] of the Leave Decision:

“13. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

14. The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.

15. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

‘13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.’

16. There is no valid reason to challenge the Board’s Decision.

17. The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

18. The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.

CONCLUSION

19. I refuse to grant leave for the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.”

10.  Under Order 53, rule 3(4) of the RHC, the applicant may appeal against the Leave Decision to the Court of Appeal within 14 days of the order.  No notice of appeal was filed by the applicant within the 14‑day period.

11.  On 15 November 2022, the applicant applied by summons (“the EOT Summons”) for an extension of time to appeal against the Leave Decision.  By that time, he was seven days late with his intended appeal. In the EOT summons, he stated that he did not receive the Leave Decision from the court.

12.  On 20 December 2022, the Deputy Judge refused the applicant’s application.  The Deputy Judge focused on the merits of his case and held that he had not been able to raise any valid ground to challenge the Board’s Decision or show any realistic prospect of success in his intended appeal.

THIS APPLICATION

13.  By a summons and a supporting affirmation filed on 28 December 2022 in the Court of Appeal, the applicant applied for leave to appeal against the EOT Decision.  In his summons, the applicant did not give any reason for his delay or any ground of appeal.  In his supporting affirmation, he stated that he was late in filing his intended appeal because he was unrepresented.

14.  In his written submissions lodged on 10 January 2023, the applicant asserted that he did not know about the judicial system or the appeal procedure.  He claimed that his problem in his home country is genuine.  He complained that the Deputy Judge did not consider his reasons stated in the EOT Summons.  He contended that the Board and the Director had failed to take into account relevant considerations, taken into account irrelevant matters, or failed to give proper weight to relevant considerations and materials and as such, their decisions were illegal.

DISCUSSION

15.  Following the approach in Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at [3] ‑ [8], we will treat the present application as a renewed application for extension of time to appeal against the Leave Decision.

16.  In deciding whether to extend time to appeal, the court will take into account the length of the delay, the reasons for the delay, the chances of the appeal succeeding, and the degree of prejudice to the other party if an extension of time is granted.

17.  The prospect of success of an intended appeal is important.  The court will not grant an extension of time to appeal for a hopeless appeal to be pursued: Re Adumekwe Rowland Ejike [2019] HKCA 702, at [19].

18.  The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524, at [14].  In particular, in an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant.  If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed.  The Court of Appeal’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst,at [14(6)]).

19.  Further, the assessment of evidence, country of origin information, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director. The court will not intervene by way of judicial review unless there is an error of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022.

20.  In our view, although the applicant’s delay of seven days may not be regarded as significant, his intended appeal is wholly without merit.  At the outset, the applicant’s contentions are all general and bare assertions without any specific particulars or evidence in support.  Given the delay of seven days, it is plainly right for the Deputy Judge to focus on the merits of the applicant’s case.  The Deputy Judge carefully considered the applicant’s reasons provided in support of his application before the Deputy Judge and gave a thorough analysis of why his intended appeal had no realistic prospect of success.  It is therefore misconceived to argue that the Deputy Judge did not consider his reasons in the EOT Summons.  Further, general assertions of his fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6].  The other contentions were all directed at the decisions of the Board and the Director and did not identify any error of the Leave Decision.  Accordingly, his submissions are plainly not proper grounds of appeal.

21.  Accordingly, there is no prospect of success in the applicant’s intended appeal.  It is thus futile to grant the applicant any extension of time to appeal against the Leave Decision.

DISPOSITION

22.  The application for extension of time to appeal is refused, and the applicant’s summons taken out on 28 December 2022 is dismissed.

23.  On 13 September 2024, the court was notified by the Director that the applicant has been removed from Hong Kong.  We will send a copy of this judgment and the sealed order to the Director and request that he uses his best endeavour to forward them to the applicant.