Re Khadka Krishna Maya

CAMP 39/2022

[2022] HKCA 1278

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 39 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 2983 OF 2018)

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Before:  Hon Au and Chow JJA in Court

Date of Judgment:  1 September 2022

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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 31 January 2022, the applicant reapplied to this Court for extension of time to appeal against the order made by Deputy High Court Judge P Li (“the Deputy Judge”) dated 22 July 2021 refusing her application for leave to apply for judicial review ([2021] HKCFI 2142) (“Leave Decision”). By a subsequent judgment dated 25 January 2022, the Deputy Judge refused the applicant’s application for extension of time to appeal against the Leave Decision ([2022] HKCFI 212) (“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 6 December 2018 (“the Board’s Decision”), dismissing the appeal against the decisions of the Director of Immigration (“the Director”) respectively dated 28 April 2016 and 5 January 2017 rejecting her claim for non-refoulement protection (collectively referred as “the Director’s Decisions”).

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.  She was arrested by the Hong Kong police on 26 August 2010 for illegal remaining and was referred to the Immigration Department on 27 August 2010.  She previously raised a torture claim which had been refused by the Director and the Board respectively on 16 February 2011 and 23 March 2011.  By way of the written representations respectively dated 23 April 2014 and 24 April 2014, the applicant raised a non-refoulement claim on the basis that she would be harmed or killed by her brother-in-law and other Maoist members if she returned to Nepal.  Factual details of the applicant’s claim were summarised by the Deputy Judge at [4] ‑ [23] of the Leave Decision.

5.By a Notice of Decision dated 28 April 2016, the Director rejected the applicant’s non-refoulement claim.  His decision covered all applicable grounds other than torture risk^[1], namely BOR3 risk^[2] and persecution risk^[3].  By a Notice of Further Decision dated 5 January 2017, the Director further rejected her non-refoulement claim on the basis of BOR2 risk[4].

6.On 13 May 2016, the applicant appealed against the Director’s Decisions to the Board.  On 25 January 2017 and 31 October 2018, she attended oral hearings before the Board and a Nepali interpreter was also present at both hearings to provide language assistance.  On 6 December 2018, the Board dismissed her appeal.  Having assessed the evidence, the Board found that the applicant had systematically failed to render a coherent and consistent account of virtually any aspect of her claims.  The Board did not consider the applicant as a credible witness and found that the applicant had failed to substantiate her claim on all applicable grounds.  Accordingly, the Board dismissed her appeal.

The Leave Decision

7.On 27 December 2018, the applicant filed a Form 86 with a supporting affirmation applying for leave to apply for judicial review against the Board’s Decision.  However, she did not put forward any ground of challenge and only claimed that she disagreed with the Board’s Decision.

8.By the Leave Decision, the Deputy Judge dismissed the applicant’s application for leave to apply for judicial review.  His reasons were set out in detail at [29] ‑ [33] of the Leave Decision:

“29. The applicant filed the leave application for judicial review on 27/12/2018. In her affirmation in support, she disagreed with the conclusion of the TCAB and the Director. She invited this court to reconsider her claim.

30. In judicial review, this court is to decide whether there is any error in law and procedure. Whether the decisions are irrational. The finding of facts is the duty of the TCAB and the Director. In general, this court would not interfere.

31. The adjudicator had analyzed the evidence carefully. I agree that there were significant discrepancies. The applicant’s explanation was unconvincing.

32. In my judgment, there is no error of law or procedure. The decisions of the TCAB and Director are reasonable.

Conclusion

33. 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 9 August 2021, the applicant filed a summons (“the EOT Summons”) together with a supporting affirmation for extension of time to appeal against the Leave Decision.  In the supporting affirmation, she alleged that she received the mail late and that there had been procedural unfairness given the lack of language assistance.

11.By the EOT Decision, the Deputy Judge considered that the applicant was late by 4 days and she had not explained further about the late receipt of the Leave Decision.  As to her allegation concerning the lack of language assistance, given that the Court documents filed by the applicant were in English, it showed that she was able to find language assistance.  The Deputy Judge considered that there was no merit in her judicial review and refused her application for extension of time to appeal.

The Present Application

12.By a summons filed on 31 January 2022[5] and an affirmation filed on 10 August 2022[6], the applicant reapplied for extension of time to appeal against the Leave Decision.  She claimed in her summons that her life would be at risk if she returned to Nepal.  In her affirmation, she further claimed that she did not receive the decision from the Court.

13.Contrary to the directions made by the Registrar of Civil Appeals on 31 January 2022, the applicant did not file any written submissions in support of her present reapplication.

Discussion

14.Before going to the merits of the present application, we will first address the issue of delay.

15.Pursuant to Order 53, rule 3(4) of the RHC, an applicant may appeal to the Court of Appeal against the Deputy Judge’s order refusing leave to apply for judicial review within 14 days after such refusal.

16.By reason of section 31(1) of the High Court Ordinance, Cap 4, the month of August, being the Court’s summer vacation[7], is to be excluded in calculating the 14-day time limit for filing the Notice of Appeal under Order 53, rule 3(4) of the RHC.  Accordingly, the time for the applicant to lodge an appeal against the Leave Decision ended on 5 September 2021.

17.As such, when the applicant filed the EOT Summons on 9 August 2021, leave was in fact not required as she was within time to lodge an appeal against the Leave Decision.  At that time, she should have filed a Notice of Appeal against the Leave Decision instead of filing the EOT Summons for extension of time to appeal.  However, as she had not lodged a Notice of Appeal by 5 September 2021, she would now need to ask for an extension of time from this Court to do so.  For that, although the Court might find the delay to be excusable, we would still need to consider the merits of her intended appeal: Re Rahman Wasif [2019] HKCA 299 at [13], Re Adumekwe Rowland Ejike [2019] HKCA 702 at [19] and Re Rahman Wasif [2019] HKCA 299 at [13].

18.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].

19.We consider that her intended appeal is wholly devoid of merit.

20.The matters raised by the applicant in the summons and supporting affirmation do not identify any error in the Leave Decision and are not proper grounds of appeal.  General and bare assertions of her fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6].  Accordingly, her intended appeal must fail.

21.For the above reasons, the applicant’s intended appeal is a non-starter and wholly devoid of merit.  Her summons filed on 31 January 2022 is hereby dismissed.

The applicant acting in person