Re Baraily Bikash

HCAL 2653/2018

[2022] HKCFI 211

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2653 OF 2018

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Before:  Deputy High Court Judge P. Li in Chambers

Date of Hearing:  29 November 2021

Date of Decision:  25 January 2022

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D E C I S I O N

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1.The applicant is a national of Nepal. He sneaked into Hong Kong on 22/7/2009. He was arrested by the police on the same day. He filed the non-refoulement claim in this case on 25/7/2009.

2.The applicant feared that he would be harmed or killed by the JTMM[1] if refouled. The reason being that his father had a land dispute with them. His father was a supporter of UML [2].

3.In May 2008, JTMM evicted the farmers from their land. A dispute arose between the applicant’s father and JTMM. The applicant threatened to call the police. A day or two later, the applicant was assaulted by some men. His father took him to Kathmandu. However, his father and brother were threatened by the JTMM continuously. They threatened to kill the applicant. The applicant fled to Guangzhou and then sneaked to Hong Kong.

4.The Director rejected his claim on 11/5/2015 and 8/6/2017. [3] The TCAB rejected his appeal on 7/6/2017 and 29/10/2018.[4]

5.In the 2017 decision, the TCAB found that there was no evidence that the Madhesi members of the JTMM were acting in any official capacity or on behalf of the State. They harassed other non-Madhesi landowners and took their land by force. The applicant did not report to any authorities. There was no massive, gross and flagrant abuse of human rights. The JTMM had ended their violent campaigns in April 2011. There was State protection and relocation options.

6.In the 2018 decision, the TCAB found that there was State protection and relocation options. There was no real risk of violation the right to life.

7.On 23/11/2018, the applicant applied for leave for judicial review of the TCAB decisions.

8.On 8/6/2021, Deputy Judge To refused leave for judicial review. The Judge opined that the leave application was in relation to the 2018 decision only. The applicant did not file any further evidence. In real terms, nothing had changed as previously decided by the TCAB in the 2017 decision. There was reasonable State protection and relocation options. The Judge found no error of law or procedure. The decisions were rational. There was no realistic prospect of success in the intended judicial review.

9.The applicant filed a summons on 19/7/2021 for extension of time to appeal against the decision of Deputy Judge To. He was nearly 1 month out of time.

10.In his affirmation, the applicant asserted that he did not receive the decision until the 2^nd week of July. He was uncertain about the delay in the mail. He took time to seek assistance to understand the decision. The court should provide interpretation services for him to understand the decision. He was not aware of the time limit.

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.[5]

12.The applicant is out of time for nearly 1 month. It is significant delay. According to the court record, the decision was sent to the last known address. It was the same as the summons for extension of time dated 19/7/2021. It was exceptional for the decision to reach the applicant in over a month. The reasons suggested by the applicant in his affirmation for the delay was pure speculation.

13.In the hearing on 29/11/2021[6] before this court, he basically repeated the explanation in the affirmation. He added that he had asked the landlord about his letter. The landlord then gave the letter to him. He thought the delay was due to the pandemic.

14.As to his complaint on language assistance, this court has no duty to provide translation of the decision. The applicant should arrange assistance for himself. His affirmation was in type-written English. This demonstrated that he could find language assistance.

15.I also consider the merits of the intended judicial review which is an important issue at this stage [7].

16.As set out above, the reasoning of the TCAB decisions is justified. There was State protection and relocation options. The applicant failed to establish that there was real risk of violation to his right to life. I agree with the decision of Deputy Judge To. The intended appeal is of no merit.

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

The applicant was unrepresented.