RE GURUNG CHETBAHADUR

CAMP 195/2022

[2022] HKCA 1538

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 195 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 2545 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.  By a summons filed on 15 June 2022, the applicant reapplied to this Court for extension of time to appeal against the order made by Deputy High Court Judge P Li (“DHCJ Li”) dated 10 February 2022 refusing his application for leave to apply for judicial review ([2022] HKCFI 430) (“the Leave Decision”). By an earlier judgment dated 24 May 2022, Deputy High Court Judge To (“DHCJ To”) also refused the applicant’s application for extension of time to appeal against the Leave Decision ([2022] HKCFI 1447) (“the EOT Decision”).

2.  The intended judicial review was directed at the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”) dated 29 October 2018 (“the Board’s Decision”), dismissing the appeal against the decision of the Director of Immigration (“the Director”) dated 8 June 2018 rejecting his claim for non-refoulement protection (“the Director’s Decision”).

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

Background

4.  The applicant is a national of Nepal.  The applicant last arrived in Hong Kong on 16 February 2016 and was allowed to remain as a visitor until 23 February 2016.  He did not depart and overstayed since 24 February 2016.  On 27 May 2016, he lodged a non-refoulement claim on the basis that he would be harmed or killed by some members of the Youth Communist League of the Maoist Party (“YCL”) if he was returned to Nepal because of his past grudges with them.  Factual details of the applicant’s claim were summarised by DHCJ Li at [2] and [8] of the Leave Decision.

5.  By a Notice of Decision dated 8 June 2018, the Director rejected the applicant’s non-refoulement claim.  His decision covered all applicable grounds including torture risk^[1], BOR2 risk[2], BOR3 risk^[3] and persecution risk^[4].

6.  On 20 June 2018, the applicant then appealed against the Director’s Decision to the Board.  On 9 October 2018, he attended an oral hearing before the Board and was assisted by a Nepalese interpreter.  On 29 October 2018, the Board dismissed his appeal.  Having assessed the evidence, the Board considered that the applicant had fabricated the claims in relation to his level of political involvement with the Communist Party of Nepal (Unified Marxist-Leninist) in Nepal, his kidnapping and the level of interest in him from the YCL members. In any event, the Board was of the view that the political situation in Nepal had changed and the risk of proscribed harm had reduced substantially.  Having assessed the evidence, the Board considered that the applicant failed to substantiate his claim on all applicable grounds and dismissed his appeal.

The Leave Decision

7.  On 13 November 2018, the applicant filed a Form 86 with a supporting affirmation applying for leave to apply for judicial review against the Board’s Decision[5]. The applicant did not specify any ground of review in his Form 86 or supporting affirmation.  As the applicant was absent from the oral hearing before DHCJ Li on 3 January 2022, DHCJ Li considered his application on paper.

8.  By the Leave Decision, the DHCJ Li dismissed the applicant’s application for leave to apply for judicial review.  His reasons were set out in detail at [13] ‑ [18] of the Leave Decision:

“13. The applicant filed the leave application for judicial review on 13/11/2018. In his affirmation, he had not pointed out any error of the TCAB decision.

14. The applicant did not attend the hearing fixed on 3/1/2022 before this court. The notice of hearing was sent to his last known address. It was updated by the applicant during his correspondence with this court on 26 February 2021. However, someone at that address refused to accept the notice from this court.

15. This court decided to deal with this claim on paper. In judicial review, this court is to decide whether there is any error in law and procedure. Whether the TCAB decision is irrational. The finding of facts is the duty of the TCAB. In general, this court would not interfere.

16. The adjudicator had analyzed the evidence carefully. He pointed out that the applicant had exaggerated his political involvement. The applicant’s uncertainty about UML and the political development in Nepal showed that he was not active in politics. I agree with the adjudicator.

17. In my judgment, there is no error of law or procedure. The decision of the TCAB is reasonable.

Conclusion

18. The intended judicial review is not reasonably arguable. There is no reasonable prospect of success. I refuse leave for judicial review.”

The EOT Decision

9.  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.

10.  On 12 April 2022, the applicant filed a summons (“the EOT Summons”) together with a supporting affirmation for extension of time to appeal against the Leave Decision.[6]  By then, he was 47 days late with his intended appeal.  In his supporting affirmation, he contended that he was detained by the Immigration Department and that the Leave Decision was reached unfairly without allowing him the opportunity to clarify his case and the situation in his home country. He furthest stated that he did not receive any correspondence form the Court regarding the hearing date and was unable to attend the hearing.  He also contended that owing to the pandemic, correspondences by post took a longer time and thus he was late in filing his appeal.

11.  By the EOT Decision, DHCJ To noted that although a delay of 47 days was substantial, owing to the pandemic situation and that the applicant was in custody, the applicant’s delay was considered excusable.  However, as his intended judicial review and appeal have no prospect of success, DHCJ To dismissed his application for extension of time to appeal.

The Present Application

12.  By a summons and supporting affirmation both filed on 15 June 2022, the applicant reapplied for extension of time to appeal against the Leave Decision.  In his summons and supporting affirmation, he only stated that he wanted to challenge the Leave Decision without giving any further elaboration or proposed ground of appeal.

13.  Contrary to the directions made by the Registrar of Civil Appeals on 15 June 2022, the applicant failed to lodge any written submissions.

Discussion

14.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the Court will have regard to: (a) the length of delay; (b) the reasons for the delay; (c) the prospect of success of the intended appeal; and (d) the prejudice to the putative respondent if extension of time was granted: Re Rahman Wasif [2019] HKCA 299 at [13].

15.  In his summons and supporting affirmation both filed on 15 June 2022, the applicant did not provide any reason to justify his substantial delay of 47 days before taking out his intended appeal.  In any event, the prospect of success of the intended appeal is important and the Court will not grant extension for a hopeless appeal to be pursued: Re Adumekwe Rowland Ejike [2019] HKCA 702 at [19] and Re Rahman Wasif [2019] HKCA 299 at [13].

16.  The general approach in dealing with appeals in non‑refoulement claims is set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  In particular, in assessing the merit of an intended appeal, this Court will focus on the Leave Decision and will only consider reversing that decision if an applicant can demonstrate that the Deputy Judge made errors of law or failed to take account of relevant matters already placed before the Court or was otherwise plainly wrong: Sakatter Singh v Director of Immigration [2021] HKCA 1490 at [15].  General and bare assertions without any specific particulars are not proper grounds of appeal: Re Farrukh Zaib [2020] HKCA 408 at [28].

17.  Nowhere in his summons or supporting affirmation did the applicant provide any ground of appeal or specify any error in the Leave Decision.  As such, his intended appeal is plainly a non-starter and must fail.

18.  As his intended appeal has no prospect of success, it will be futile to extend time.  The application for extension of time to appeal is therefore refused and the applicant’s summons dated 15 June 2022 dismissed.