Re Raju Rana

CAMP 26/2022

[2022] HKCA 434

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 26 OF 2022

(ON AN INTENDED APPEAL FROM HCAL 1715/2018)

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Before:  Hon Cheung JA and Barma JA in Court

Date of Judgment:  21 March 2022

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J U D G M E N T

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

1.This is an application for extension of time to appeal against the decision of Deputy High Court Judge K W Lung (“the Judge”)  dated 17 June 2020 refusing to grant leave to the applicant to apply for judicial review. The intended judicial review was against the decisions of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”)  dated 17 October 2016 and 19 July 2018 (“the Board’s Decisions”)  dismissing the appeal against the decisions of the Director of Immigration (“the Director”)  dated 27 November 2014 and 8 December 2016 rejecting the applicant’s non-refoulement claim (“the Director’s Decisions”).

Background

2.The applicant is a national of Nepal.  He entered Hong Kong on 13 January 2009 and was permitted to remain as a visitor until 20 January 2009.  He overstayed and was arrested by the police on 10 February 2009.  The applicant thereafter lodged a non-refoulement claim on 11 February 2009.

3.The applicant’s claim was based on a fear of being harmed or killed by members of the Maoists if he was refouled to Nepal. The details of the applicant’s claim have been summarised by the Judge at [5] and [6] of his decision (“the CALL-1 Form”)[1].

4.By Notices of Decision dated 27 November 2014 and 8 December 2016, the Director decided against the applicant’s claim.  The Director’s Decisions covered the torture risk[2], the persecution risk[3], the BOR 2 risk[4] and the BOR 3 risk[5].

5.The applicant appealed to the Board.  After hearings on 8 October 2015 (at which the applicant was absent)  and on 30 May 2018 (at which the applicant was present), the Board dismissed the appeals on 17 October 2016 and 19 July 2018.  The Board’s Decisions covered all four grounds for non-refoulement protection.  The Board concluded that the applicant had, on the evidence, failed to establish a genuine or substantial risk of harm if returned to Nepal.

The Judge’s decision

6.The applicant filed a Form 86 on 22 August 2018 seeking to judicially review the Board’s Decisions without setting out any grounds of review.  In his supporting affirmation, he merely repeated his fears of returning to Nepal.  

7.After summarizing the facts and background of the case and giving due consideration to the Board’s and the Director’s Decisions, the Judge refused to grant leave for judicial review.  The Judge gave the following reasons in refusing leave to apply for judicial review at [14] to [17] of the CALL-1 Form:

“14.   In Nupur Mst v Director of Immigration [2018] HKCA 524 §14, the Court of Appeal held that evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them.  The court will not usurp their roles as primary decision and the determination of the merits of a non-refoulement claim is essentially a matter for the Director and for the Board, not for the court.

15.  There is nothing to show that the Board had committed any error in its application of the law to his case or in coming to its conclusions on the facts of the case.

16.  The applicant is unable to show that he has any reasonable prospect of success for his intended judicial review.

CONCLUSION

17.  I therefore refuse to grant leave to the applicant to apply for judicial review. Accordingly, I dismiss his application.”

The present application for extension of time to appeal

8.The applicant’s address as stated in his Form 86 was at Temple Street, Yau Ma Tei (“the Temple Street Address”).  According to the court’s record, a copy of the CALL-1 Form and a sealed copy of the Judge’s order were sent by post to the applicant at the Temple Street Address on 17 June 2020.  This letter was not returned undelivered.

9.Pursuant to Order 53 rule 3(4), the applicant had 14 days to lodge an appeal.  The applicant did not file a Notice of Appeal within 14 days of the Judge’s decision dated 17 June 2020.

10.The applicant took out a summons in the Court of First Instance on 20 October 2020 seeking extension of time to appeal, in which his address was stated to be at Battery Street, Yau Tsim Mong.  He stated in the summons that the reason for the delay in his lodging of the intended appeal was because he was “suffering from vomiting and so much ill”.  In his supporting affirmation filed on the same date, he repeated his fears if refouled and added that his home village in Nepal was “suffering from corona”.   

11.The applicant’s application to appeal out of time was dismissed by the Judge on 2 November 2021[6].

12.By a summons filed on 19 January 2022, the applicant renewed his application for an extension of time to appeal before this court.  In the summons, the applicant again repeated his fears.  He said in his affirmation:

“I don’t want to go back, I want to appeal. Because my case is refused”

13.The applicant, in breach of the directions of the Registrar of Civil Appeals, failed to lodge any written submissions on or before 4 February 2022.  We have therefore proceeded to consider his application on the basis of the available documents.

Discussion

14.Having considered the papers, we are satisfied that this application can properly be dealt with on the papers without the need for an oral hearing.  We have, therefore, determined the applicant’s application on the basis of the documents filed.

15.The applicant has proffered no reason or explanation to us for the delay in bringing the intended appeal. 

16.In the circumstances, we are of the view that there is no reasonable explanation for the applicant’s delay in bringing the intended appeal.

17.We have nonetheless proceeded to consider the merits of the intended appeal.

18.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 and viability of internal relocation.  The role of the court in judicial review is not to re-assess the non-refoulement claim.  The court will scrutinise 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 [2018] HKCA 524 at [14(1)].

19.The applicant did not in the Form 86 or the accompanying affirmation point to any error of law, procedural unfairness or irrationality in the Board’s Decisions.  The applicant has not condescended to any particulars as to on what basis the Board’s Decisions were said to be wrong, unfair or Wednesbury unreasonable.  That being the case, the application for leave for judicial review was hopeless and rightly dismissed by the Judge.

20.Further, an appeal against a refusal of leave to apply for judicial review is not the occasion for the Court of Appeal to examine the decision of the Board afresh.  What the appellate court is concerned with is the decision of the judge at first instance which is considered in light of the grounds of appeal raised by the applicant.  The Court of Appeal will interfere only if the judge had erred in law, failed to take into account a relevant matter or was otherwise plainly wrong. See again Nupur Mst v Director of Immigration at [14(2)  & (4)]. 

21.The applicant has failed to identify any arguable error of law by the Judge, any relevant matter that he had failed to consider or any other reason why the refusal of leave was wrong.  Nor can we discern any such matters.

22.For these reasons, we do not see any prospect of success in the intended appeal, and this court will not grant an extension of time for a hopeless appeal.  The summons filed on 19 January 2022 is accordingly dismissed.

The applicant acting in person