Re Rai Sukha Dev

CAMP 92/2023, [2023] HKCA 1163

On Appeal From [2022] HKCFI 1925

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 92 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO 1021 OF 2019)

____________________

____________________

Before: Hon Cheung and Au JJA in Court

Date of Judgment:12 October 2023

_______________

J U D G M E N T

_______________

Hon Au JA (giving the judgment of the court):

1.By an order dated 28 June 2022 ([2022] HKCFI 1925) (“the Leave Decision”), Deputy High Court Judge To (“the Deputy Judge”) dismissed the applicant’s application for leave to apply for judicial review. Later, by a decision dated 20 February 2023, the Deputy Judge refused the applicant’s application for extension of time to appeal against the Leave Decision ([2023] HKCFI 436) (“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 March 2019 (“the Board’s Decision”) refusing the appeal against the decision of the Director of Immigration (“the Director”) dated 30 April 2018 rejecting his claim for non‑refoulement protection (“the Director’s Decision”).

3.By a summons filed on 1 March 2023, the applicant appealed to this court for “leave to appeal” against the Leave Decision.

4.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

5.The applicant is a national of Nepal.  He last entered Hong Kong on 18 March 2014 and was permitted to remain as visitor until 25 March 2014.  He did not depart and has overstayed since 26 March 2014.  On 24 June 2015, he surrendered to the Immigration Department for having overstayed.  By way of a written representation dated 18 September 2015, he raised a non-refoulement claim on the basis that he would be harmed or killed by his younger brother because of a financial dispute in the family.  Factual details of the applicant’s claim were summarised by the Deputy Judge at [5] ‑ [12] of the Leave Decision.

6.By the Director’s Decision, 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].

7.Subsequently, the applicant appealed against the Director’s Decision to the Board.  The Board heard the appeal on 28 February 2019.  After considering the evidence, the Board did not find the applicant to be a truthful witness given the significant difference in fundamental aspects between his account in his non-refoulement claim form and his oral evidence.  Although the Board accepted the applicant’s personal and family background, as well as his education and working history as claimed, the Board did not accept all his other factual allegations made in support of his claims, including the stated threats by his younger brother.  The Board was also of the view that the claimed dispute was confined to his local area without no involvement of the state.  Accordingly, the Board found that the applicant failed to substantiate his claim on all applicable grounds and dismissed his appeal on 29 March 2019.

The Leave Decision

8.On 15 April 2019, the applicant filed a Form 86 with a supporting affirmation applying for leave to apply for judicial review against the Board’s Decision.  No ground of review was provided in his Form 86.  In his supporting affirmation, he only stated that the Immigration Department disregarded his dangerous situation.  As the applicant did not request any oral hearing, the Deputy Judge considered his application on paper.

9.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 [19] ‑ [21] of the Leave Decision:

“19. Having rigorously examined the Decision the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; and observed a very high standard of fairness. The Board clearly understood that its duty was to consider the Applicant’s claims afresh and not just whether to uphold or dismiss the Director’s decision in the Notice. It correctly identified the factual and legal issues involved in the claims.

20. The Applicant’s claim is founded on his alleged threat by his brother to kill him. He gave two different irreconcilable accounts. The Board carefully weighed the evidence and assessed his credibility. It found him incredible, his evidence unreliable and his case inherently improbable. It did not accept his evidence about the threat. As the Applicant bore the burden of proving his claims, such a finding was fatal. It was on that basis that the Board found there was no factual basis to support the Applicants’ claims for non-refoulement protection under any of the four applicable grounds under the USM. Basically, the Applicant failed to discharge his burden of proving his fears and risks. This conclusion was further supported by availability of internal relocation. These are finding of facts which are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality. The Court was satisfied that there was no error of law in the Board’s Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Decision did satisfy the enhanced Wednesbury test. It was not Wednesbury unreasonable or irrational. The Decision was utterly without fault. The Applicant’s claims are not reasonably arguable. There is no realistic prospect of success in the proposed judicial review.

Conclusion

21. For the above reasons, leave was granted to amend the Form 86 in manner as mentioned in paragraph 3 above; but the application for leave to apply for judicial review as amended was refused.”

The EOT Decision

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 29 August 2022, the applicant filed a summons (“the EOT Summons”) together with a supporting affirmation for extension of time to appeal against the Leave Decision.  By then, he was over 1.5 months late with his intended appeal.  In the EOT Summons, he only craved for leave to advance a new sole ground of appeal without stating what the intended ground was.  In his supporting affirmation, he only stated that the Leave Decision was reached without allowing him an opportunity to clarify his case and situation in his country.  He further stated that he was a litigant in person, illiterate and unrepresented.  He also alleged that he was not aware of the 14-day time limit and that he did not receive any correspondences from the Court regarding the refusal of his application for leave to apply for judicial review.

12.By the EOT Decision, the Deputy Judge noted that the applicant offered no explanation for his delay and that illiteracy and lack of legal assistance was not a valid explanation for his delay.  In terms of the merits of his intended appeal, the Deputy Judge observed that the applicant had the services of an interpreter in preparing his claim, at his screening interview and in the appeal before the Board, and that nothing amiss arose from the non-availability of legal representation or language assistance at any stage of the non-refoulement proceedings.  The Deputy Judge also noted that the applicant did not give any particulars of his alleged new intended ground of appeal and held that his intended appeal had no prospect of success. Accordingly, the Deputy Judge refused his application for extension of time.

The Present Application

13.By a summons and supporting affirmation both filed on 1 March 2023, the applicant applied to this court for “leave to appeal against” the Leave Decision.  In the summons, he merely stated that he failed to get the Court’s letter on time and applied for time approval, but he failed to give any reason in support of his application.  In his supporting affirmation, he claimed that he was unrepresented and did not have access to any legal advice and that there was a good ground of appeal that was not necessarily considered at the stage of applying for leave for judicial review.  He however failed to identity what the intended ground of appeal was.

14.Contrary to the directions made by the Registrar of Civil Appeals on 1 March 2023, the applicant failed to lodge any written submissions.

Discussion

15.Although the applicant sought “leave to appeal” in the summons, we will treat this a re-application for extension of time to appeal from the Leave Decision.

16.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].

17.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].

18.In our view, his application has no merit at all and must fail.  The applicant’s delay of 1.5 months was substantial and he failed to provide any cogent explanation for his delay. Ignorance of the procedural rules and time limit is not a valid reason for his substantial delay.  Moreover, it has been repeatedly emphasised by the Court of Appeal that as a matter of law, a non-refoulement claimant is not entitled to free legal representation at all stages of the process and that the high standard of fairness required by law does not entail interpretation service being made available to an applicant all the time as he desires: Re Zunariyah [2018] HKCA 14 at [18]; Re Zahid Abbas [2018] HKCA 15 at [11] and Re Tariq Farhan [2018] HKCA 17 at [11].

19.More importantly, and in any event, his assertions are all general and bare assertions and the applicant failed to point out any specific error in the Leave Decision.  Accordingly, none of his assertions are proper grounds of appeal: Re Farrukh Zaib [2020] HKCA 408 at [28].

20.For the above reasons, the intended appeal has no prospect of success.  It will be futile to extend time.  We would therefore have also dismissed the applicant’s summons filed on 1 March 2023.