RE GHALE TEJ BAHADUR

CACV 220/2020

[2021] HKCA 1123

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 220 OF 2020

(ON APPEAL FROM HCAL 1720/2018)

____________________

RE:

GHALE TEJ BAHADUR

Applicant

____________________

Before:  Hon Poon CJHC and Barma JA in Court

Date of Judgment: 17 August 2021

___________________

J U D G M E N T

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

1.  On 1 April 2021, this court (Poon CJHC and Barma JA) handed down a judgment dismissing the applicant’s appeal against the decision of Deputy High Court Judge K W Lung (“the judge”) on 18 June 2020 refusing leave to the applicant to apply for judicial review. The applicant had sought to review the decision of the Torture Claims Appeal Board (“the Board”) dismissing his appeal from the decisions of the Director of Immigration rejecting his non‑refoulement claim.

2.  The facts and issues in the appeal, as well as the court’s reasons for dismissing it, are set out in our judgment.[1] We will not repeat them here.

3.  The applicant subsequently applied, by a Notice of Motion filed on 5 May 2021, for leave to appeal to the Court of Final Appeal out of time.  The applicant identified a number of errors allegedly committed by the Board and the Director.  He also stated that:

(1)  it would be dangerous for the applicant to return to Nepal;

(2)  “many” asylum seekers were killed by force because the Director refused their claims and “pushed them to go back”;

(3)  his legal aid application was refused;

(4)  the Court of Appeal and the judge erred in failing to carry out sufficient research and inquiry into country of origin information (COI), the impact from the coronavirus pandemic and the political activities; and

(5)  no flight or other means of transport is available for the applicant to return to Nepal.

4.  In the affirmation filed on 5 May 2021, the applicant reiterated the matters raised in the Notice of Motion and deposed that:

(1)  he did not lodge skeleton submissions for the appeal before this court because he could not receive any letter from the High Court; and

(2)  the applicant did not understand English or the judicial system.  He also did not have the means to get legal assistance.

5.  The applicant lodged a written submission in support of the application on 17 May 2021.  In the written submission, the applicant reiterated the matters raised in the Notice of Motion and he further submitted that:

(1)  it is dangerous to go back to Nepal because the local police have killed people in the name of reducing Islamic crime;

(2)  the Court of Appeal and the judge failed to provide reasons as to the “relevance or otherwise of the COI material employed”; and

(3)  the Court of First Instance and Court of Appeal failed to discharge its duty to comprehensively consider the lawfulness or fairness of decision-making.

6.  Having considered the applicant’s Notice of Motion, affirmation and written submission, we see no reason to depart from the usual practice of determining an application of this kind on the papers.  We have, therefore, determined the applicant’s application on the basis of the documents filed.

7.  We are of the view that the applicant has not provided any reasonable explanation for his delay in bringing the intended appeal.  We nonetheless go on to consider the merits of the intended appeal.

8.  The matters stated by the applicant do not constitute grounds for granting leave to appeal to the Court of Final Appeal.  The applicant has failed to identify any question of great general or public importance for the Court of Final Appeal to determine, as required by section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484.  Nor is any such question apparent to us from the matters he has raised.  

9.  We note that the applicant has not raised any of the complaints advanced in the present application in the application for leave for judicial review.  Also, the grounds had not been advanced in the appeal before this court.  As we have explained before, it is not the practice of the Court of Appeal to grant leave to appeal on new points that were not canvassed in the hearing before it;[2] nor generally is it the practice of the Court of Final Appeal to grant leave on new fact-sensitive points not argued in the Court of Appeal.[3]

10.  We also do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b).

11.  For these reasons, the Notice of Motion dated 5 May 2021 is dismissed.

(JEREMY POON) Chief Judge of the High Court

(AARIF BARMA) Justice of Appeal

The applicant acting in person

CACV 220/2020

[2021] HKCA 441

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 220 OF 2020

(ON APPEAL FROM HCAL NO. 1720 OF 2018)

____________________

RE:

GHALE TEJ BAHADUR

Applicant

____________________

Before:  Hon Poon CJHC and Barma JA in Court

Date of Judgment:  1 April 2021

___________________

J U D G M E N T

___________________

The Court:

1.  This is an appeal against the decision of Deputy High Court Judge K.W. Lung given on 18 June 2020 refusing leave to the applicant to apply for judicial review.  The intended judicial review was against the decision of the Torture Claims Appeal Board (“the Board”)/adjudicator of the Non-Refoulement Claims Petition Office dated 16 August 2018 dismissing the applicant’s appeal against the decisions of the Director of Immigration (“the Director”) dated 14 April 2015 and 5 June 2017 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Nepal.  He entered Hong Kong on 17 July 2009 illegally and was arrested by the police on the same day.  He lodged a non-refoulement claim on 20 July 2009. 

3.  The applicant’s claim was based on threats from the family, relatives and friends of the members of Maoist who died in a fight between the youth of the Young Communist League and the Maoists in May 2009.  The details of the applicant’s claim have been summarised by the judge at [4] to [5] of the CALL-1 Form.

4.  By a Notice of Decision dated 14 April 2015 (“the Director’s First Decision”), the Director decided against the applicant’s claim.  The Director’s First Decision covered the BOR 3 risk^[1], the persecution risk^[2], and the torture risk^[3].

5.  By a Notice of Further Decision dated 5 June 2017, the Director also accessed the applicant’s claim based on the BOR 2 risk^[4], and decided against him.

6.  The applicant appealed to the Board.  After a hearing on 12 October 2017 and 16 January 2018, the Board dismissed the appeal on 16 August 2018 (“the Board’s Decision”).  The Board’s Decision covered all four grounds for non-refoulement protection.

7.  At [41] of the Board’s Decision, the Board found that the applicant’s evidence was not reliable.  The Board was also satisfied at [75] that state protection would be available for the applicant and that internal relocation would be viable.

The judge’s decision

8.  The applicant filed a Form 86 on 23 August 2018 which contained no ground for seeking relief.

9.  In his affirmation in support of the leave application dated 23 August 2018, the applicant simply identified the Board’s Decision as the subject decision of the intended judicial review proceedings without giving any ground for judicial review. 

10.  After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the judge refused to grant leave for judicial review. The judge gave the following reasons in refusing leave to apply for judicial review at [13] to [16] of the CALL-1 Form:

“13. 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.

14. 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.

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

CONCLUSION

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

Grounds for appeal

11.  In the Notice of Appeal dated 26 June 2020 the applicant contended that:

(1)  the judge wrongly arrived at the conclusion that the Board did not make any error in the Board’s Decision;

(2)  the Board wrongly found him to be an incredible witness and dismissed his appeal;

(3)  the judge dismissed his complaints about the lack of clarity and transparency in the bundle; and

(4)  the applicant was not given any legal or language assistance.

12.  The applicant agreed by a letter of 26 June 2020 that the appeal could be heard by two judges.  The applicant failed to comply with the direction made by this court on 22 August 2020 requiring him to lodge skeleton submissions 28 days before the hearing of the appeal, despite being warned that the hearing date would be vacated and the appeal dealt with on paper in the event of non-compliance.  The hearing date on 24 November 2020 was therefore vacated and the applicant was debarred from lodging any written submissions.  We will deal with the appeal on paper on the basis of the materials already filed with the court.

Discussion

13.  We note that none of the grounds raised in the notice of appeal had been raised as a ground for judicial review before the court below.  It is thus not open to the applicant to raise these matters on appeal for the first time, well outside the time limit for bringing judicial review proceedings (see Re Nupur Mst[2018] HKCA 524, CAMP 54/2018 at §14(4)).  In any event, they lacked particulars and are bound to fail.

14.  There is no merit in the appeal and we dismiss it accordingly.

(Jeremy Poon)	(Aarif Barma)
Chief Judge of the High Court	Justice of Appeal

The applicant, acting in person