Case Detail

HCAL 1335/2020

[2024] HKCFI 3227

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1335 OF 2020

________________________

BETWEEN

	Bal Tamang Chandra Bahadur	Applicant
	and
	Torture Claims Appeal Board / Non-refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

________________________

Before:

Deputy High Court Judge To in Chambers

Date of Decision:

22 November 2024

________________________

D E C I S I O N

________________________

Introduction

1. This is the Applicant’s application by summons filed on 17 October 2024 seeking extension of time to appeal the order of this Court dated 3 January 2024 (the “Order”) refusing his application for leave to apply for judicial review (the “leave application”) of the decision (the “Decision”) of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board”).

Procedural background

2. The Applicant made a non-refoulement claim on 4 August 2015 which was rejected by the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 22 February 2019 (the “Notice”). He then lodged a notice of appeal against the decision in the Notice (the “NOA”) with the secretariat of the Board on 12 March 2019. It was lodged one day late. Having considered his explanation for the late filing as stated in the NOA, the Board refused his late filing on 5 September 2019 (the “Decision”). On 29 June 2020, he filed the leave application in respect of the Board’s Decision. It was filed six and half months out of time. On 3 January 2024, this Court issued the Order and Form CALL-1 refusing his leave application. On 17 October 2024, he applied for extension of time to appeal.

3. There are three late events: (1) the late filing of the NOA which is the subject matter of the Board’s Decision which the Applicant sought to judicially review; (2) the late application for leave to apply for judicial review of that Decision; and (3) the late application for extension of time to appeal this Court’s decision refusing his leave application.

Legal principles applicable to application for extension of time to appeal

4. Under Order 53, rule 3(4) of the Rules of the High Court, an appeal against any decision of the court refusing an application for leave to apply for judicial review shall be made within fourteen days after the date of the decision. Thus, by 17 October 2024 when the summons was filed, this application was nine months out of time.

5. In Jagg Singh and Torture Claims Appeal Board / Non-refoulement Claims Petition Office[1], the Court of Appeal held that in considering whether to extend time for appealing a decision refusing leave to apply for judicial review, the court will take into account: (1) the length of the delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if extension of time was granted. Usually, prospect of success of the intended appeal is the single factor which carries most weight in deciding whether to grant extension of time. The fourth factor needs to be considered only if the sum total of the first three are in favour of granting extension of time.

Discussion

6. The application is nine months out of time, which is very substantial in the context of a 14-day period of appeal. In his supporting affirmation, the Applicant claimed he had never received the Order and had not even received the notice of hearing of his leave application, which resulted in his leave application being determined in his absence. To assist him to present a proper application for extension of time to appeal, directions were given to him to file an affirmation or a statement within 14 days of the directions setting out, inter alia:

(1)  the explanation for the nine months’ delay before taking out this application;
(2)  the date when and circumstances under which he first came to know about the Order;
(3)  all changes of his correspondence addresses since his release from detention in November 2023;
(4)  the dates when he informed the Court and the Immigration Department of the changes, and
(5)  the grounds of his intended appeal.

7. His response reached the Court on 11 November 2024. It was 18 days’ late. He explained this delay by reason of his being held in custody. Understanding the inconvenience facing a person in custody and giving him the benefit of doubt, the Court accepted that explanation and proceeds to consider his application for extension of time to appeal.

8. The Applicant’s explanation for the delay in appealing is that he had never received the notice of hearing of his leave application which resulted in his leave application being determined in his absence; and he had never received the decision of this Court regarding his leave application, ie the Order and Form CALL-1. He was only informed of the outcome of his leave application by his case officer when he was transferred from Tai Lam Correctional Institution after serving his prison term to Tai Tam Gap Correctional Institution on 1 August 2024.

9. Thus, in respect of the initial delay of six and half months before he became aware of the outcome of his leave application, his explanation is that he had never received the Order and Form CALL-1. He said he had never changed his address since October 2023 as he was residing with his wife and the address he gave to the Immigration Department is the address of his wife. He did not state his wife’s address. Accepting what he said to be true, all correspondences from this Court had been sent to him by post to his correct address as the address was obtained from the Immigration Department.

10. Not only did he claimed he had not received the Order and Form CALL-1, he also claimed he had not received the notice of hearing. In addition, on 12 December 2023 a notice that the decision will be handed down towards the end of that month had been sent to him by post. All these documents had been sent to him by post to the correct address. The delivery service of Hong Kong Post is usually very reliable. It is very unlikely that two delivery failures could and would have so coincidently occurred to him and in relation to his non-refoulement claim. If these documents had been delivered to his correct address, it is unlikely that he would not have received them. Furthermore, unless he had also not received the notice of handing down of the decision, a reasonable applicant in his position and in the face of imminent refoulement would have made some inquiry with the Court about the outcome of his leave application by January 2024 and would not have waited for nine and half months to appeal until he had served his sentence and was transferred to immigration detention on 1 August 2024. For all three or even two delivery failures to happen to him is too much a coincidence to be true.

11. The Applicant has a record of non-compliance with time limits. He was one day late in filing his notice of appeal against the decision of the Director’s Notice refusing his claim for non-refoulement protection. He was six and half month late in filing his leave application. He was nine month late in filing his appeal against the Order. If he did not deliberately occasion the last two delays for the purpose of delaying his non-refoulement process, he is at least a person with no respect for time limit. I found his explanation for the initial period of delay is incredible.

12. Even ignoring that initial delay of six and half months, it was not until 17 October 2024 that he made the present application for extension of time to appeal. Accepting what he claimed to be true (which I do not), it took him two and half months to make this application. Even allowing for the inconvenience of being in custody and his ignorance about the appeal procedures, the delay since he was informed of the outcome of his leave application is very substantial in the context of a 14 days’ period of appeal and unexplained.

Prospect of success on appeal

13. The primary basis of the Court’s decision as stated in paragraph 7 of the Form CALL-1 are the more than six and half months’ delay in filing the leave application and the absence of explanation for the delay. These factual basis of the decision is incontrovertible. The legal basis is Litton NPJ’s dictum in Po Fun Chan v Winnie Cheung[2] that “where an application is made many months after the time limit … the judge is entitled to refuse leave, however strong the complaint might otherwise be.”

14. The grounds of appeal advanced by the Applicant are just reiterations of the facts of his case and his fear. He solely emphasized on his fears and wholly ignored the time limits in the procedures. In fact, he could not dispute the finding of delay and the absence of reasonable explanation or challenge the decision of the Court of Final Appeal in Po Fun Chan v Winnie Cheung. His challenge of the primary basis of this Court’s decision has no prospect of success.

15. The secondary basis of the Court’s decision is its finding that the Decision was not made as result of error of law, procedural unfairness or is irrational. Section 37ZT(2) of the Immigration Ordinance mandates the Board to make a preliminary decision without a hearing whether to allow the late filing. The subsection requires the Board to only take account of the reasons stated by the Applicant in the NOA, the supporting evidence and any other relevant matters of fact within the knowledge of the Board. The Applicant’s explanation for the delay was that he received the Notice on a date which was six weeks after the date he filed the NOA. The Board rejected that explanation as impossible. After allowing for the time for delivery of the Notice, the Board found that the NOA was filed one day out of time. Having rejected the Applicant’s explanation, the Board could only come to the conclusion that he had no valid explanation for the delay and hence refused his late filing.

16. The issues raised in all the decisions the Applicant sought to appeal or review are related to procedural matters: late filing of NOA, late filing of leave application and late appeal. The merits of his non-refoulement claim is of no or little significance. He advanced no arguable grounds as to what was wrong in the secondary basis of the Court’s decision. His challenge of the second basis of this Court’s decision also has no prospect of success.

Conclusion

17. The Applicant has no reasonable explanation for the nine months’ delay in making the application to appeal out of time. He has not demonstrated that his intended appeal has any prospect of success. Now that when his delay is viewed against his explanation, it became all the more obvious that the delay was deliberate and an abuse of legal process for the purpose of delaying his refoulement process. Extension of time to file the appeal is therefore refused.

	( Anthony To )
	Deputy High Court Judge

The applicant is not represented

[1] CAMP 64/2020; [2020] HKCA 844

[2] (2007) 10 HKCFAR 676 at 693B to C, per Litton NPJ

HCAL 1335/2020

[2024] HKCFI 66

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1335 of 2020

BETWEEN
	Bal Tamang Chandra Bahadur	Applicant
	and
	Torture Claims Appeal Board / Non-Refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

consideration of the documents only; or
consideration of the documents and the Applicant being absent in open court;

Order by Deputy High Court Judge To:

1. Extension of time to apply for leave for Judicial Review be refused; and
2. Leave to apply for Judicial Review refused.

Observations for the Applicant:

Introduction

1. This is the Applicant’s application by Form 86 filed on 29 June 2020 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (the “Board”) dated 5 September 2019 (the “Decision”) refusing his late filing of Notice of Appeal (“NOA”) against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 22 February 2019 (the “Notice”).

2. The Applicant is a Nepalese national. He entered Hong Kong on 18 April 2013 as a visitor and was permitted to remain until 25 April 2013. He overstayed and surrendered to the authorities on 15 January 2014. On 4 August 2015, he raised a non-refoulement claim. In due course, his non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism, namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4]. His claim was dismissed by the Director’s Notice. He lodged his NOA against the Director’s Notice. But the Board refused to accept his late filing. He now applies for leave to apply for judicial review of that Decision.

3. There are two late events: (1) the late filing of the NOA which is the subject matter of the Decision which the Applicant seeks to judicially review; and (2) the late application for leave to apply for judicial review of that Decision. The Applicant has two hurdles to overcome. He has to obtain leave to file the leave application out of time (the second hurdle); and, if successful, obtain leave to apply for judicial review by showing that the Decision refusing his late filing of the NOA is somehow unjustified (the first hurdle).

4. The Applicant was detained under the Immigration Ordinance (the “Ordinance”) pending removal from Hong Kong. That was the position at least as at 13 November 2023 according to a letter from the Department of Justice. An oral hearing on 4 December 2023 was scheduled for hearing his leave application. The notice of hearing sent to him care of Tai Tam Gap Correctional Institution was returned undelivered indicating that he had been released. Another notice was sent to him by post to his last known address obtained from the Immigration Department, which was presumably provided by the Applicant upon his release. That notice was not returned through the course of post. However, the Applicant did not appear at the hearing. There was nothing to suggest he had not received the notice. Having considered the nature of the application and issues raised, the Decision, the papers, and all the circumstances, the Court considered that the leave application may be justly determined on paper without an oral hearing.

The late leave application

5. The leave application was filed more than nine and half months after the date of the Decision sought to be reviewed. Pursuant to section 21K(6) of the High Court Ordinance and Order 53, rule 4(1) of the Rules of the High Court, it was made more than six and half months out of time. Leave to file the leave application out of time is required.

6. In AW and Director of Immigration and William Lam[5], the Court of Appeal held that the following factors are relevant in determining whether to grant leave to file an application for leave to apply for judicial review out of time: (1) length of the delay; (2) explanation for the delay; (3) merits of the substantive application; (4) prejudice to the applicant if leave is refused vis-à-vis that to the respondent and public administration if leave is granted; and (5) whether the application raises any questions of general public importance, and whether those questions are likely to have to be resolved by the courts in any event. Usually, the first three factors are most crucial and determinative. If the sum total of these three factors are in favour of grant of extension, the court could be more relaxed in the remaining two. Conversely, if it is against the grant of extension, there is no need to consider the remaining two factors. However, where an applicant is many months out of time, leave may be refused “however strong the complaint might otherwise be”, see Po Fun Chan v Winnie Cheung[6], per Litton NPJ.

7. The delay in this case is so substantial that leave may be refused on this ground alone, unless the Applicant has a reasonable and credible explanation for the delay. Such substantial delay suggests that the Applicant does not have any genuine intention to prosecute his application and that the application may be an abuse of proceedings. The Applicant gave no explanation for the delay. Nevertheless, out of abundance of caution, the Court proceeds to assess the prospect of success in the proposed judicial review.

The Applicant’s case

8. Having regard to the issue raised by this leave application, the Applicant’s case for non-refoulement protection is of little significance. It is summarised for completeness.

9. The Applicant is a Nepalese, now aged 39. He claimed he was kidnapped in late 2006 by a Maoist rebellious group known as the “Forum” and trained to fight for the Forum. He managed to escape from the training camp one night and took refuge in his friend’s house, around 15 to 20 km away. After staying there for three days, he moved to Kathmandu to reside with that friend’s relative. While in Kathmandu, his father told him that the Forum people were looking for him and claimed that he had leaked information about the location of the training camp, the extortion and kidnapping committed by the Forum. The Forum people also looked for him in Kathmandu, but he managed to avoid them by changing his location. In 2007, he moved to Jammu, India where he lived peacefully for a year. He returned to Nepal in 2008 to apply for a passport. Then he went back to India and stayed there until 2012 when he returned to Kathmandu briefly. Then, he flew to Hong Kong in April 2013 to seek protection. He maintained contact with his parents in Nepal who told him that the Forum people continued to look for him at his home about twice or thrice per month. In gist, he claimed that he would be harmed by the Forum if returned to Nepal because they believed he had leaked information about the Forum. He does not consider he could avoid the Forum by internal relocation.

The finding of the Director

10. The Director found that the risks of harm from the Forum were low. The Forum people never attacked the Applicant while he was at the training camp and they never managed to find him after his escape. As they were still looking for him at his home, this showed that they were unaware of the fact that he had left Nepal. Hence, the Forum is not as powerful or well-connected as the Applicant feared.

11. On the basis of authoritative and credible Country of Origin Information, the Director accepted that the Nepalese police force had made significant progress in improving its effectiveness. Further, there has been a change in the political scene. The Maoist party has ceased terrorism activities and many of its members had been elected to the parliament. It is no longer designated as a terrorist organisation. The Nepalese government have no reason to deny the Applicant protection. The Director considered adequate state protection would be available to the Applicant if he returns to Nepal. Further, the Director found the Applicant could relocate to other parts of Nepal such as Dhangarhi or Dharan to negate the perceived risks and being an able-bodied adult it would not be unreasonable to expect him to relocate. Hence, the Director issued the Notice refusing his claim for non-refoulement protection.

The relevant legal provisions relating to late filing of NOA

12. Under the non-refoulement protection regime, a claimant aggrieved by the decision of the Director may appeal that decision by filing a NOA with the Board within 14 days after the notice of decision has been given to him: Section 37ZS(1) of the Ordinance and Paragraph 8.1 of the Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme (the “Petition Guide”). Failing that, he may also make a late filing, pursuant to Section 37ZT(1) of the Ordinance, by giving a statement of the reasons for his failure accompanied by all available supporting evidence. For that purpose, Section 5 of the NOA form is designed as an application for late filing for the claimant to state the reasons for his failure when filing the NOA.

13. Section 37 ZT(2) of the Ordinance and Paragraph 9.2 of the Petition Guide mandate the Board to decide, as a preliminary decision without a hearing, whether to allow the late filing. The subsection also requires the Board to only take account of the statement of reasons stated in Section 5 of the NOA, the supporting evidence relied on and any other relevant matters of fact within the knowledge of the Board. Under Section 37ZT(3) of the Ordinance and Paragraph 9.3 of the Petition Guide, the Board may allow the late filing if the claimant has provided sufficient evidence in writing to satisfy the Board that he had exercised all due diligence to file the NOA within time but failed because of circumstances beyond his control.

The finding of the Board

14. The Director’s Notice was sent to the Duty Lawyer Service then acting for the Applicant on 22 February 2019. In Paragraph 39 of the Notice is a statement informing the Applicant that if he is aggrieved by the decision in the Notice, he must file his NOA with the secretariat of the Board within 14 days after the date of the Notice. The address of the secretariat was given in that paragraph. A blank copy of the NOA was also annexed to the Notice. The completed NOA dated 12 March 2019 was lodged with the secretariat on the same date.

15. The explanation for the late filing as stated by the Applicant in Section 5 of the NOA is that the Notice was given to him on 27 April 2019. That date is in fact six weeks after the NOA was received by the secretariat. That date is obviously an error and incorrect. On the information known to the Board, the Notice was given by the Director to the Duty Lawyer Service then representing the Applicant on 22 February 2019. The Board was satisfied that there was no delay on the part of the Director in sending the Notice to the Applicant via the Duty Lawyer Service which was representing him then and which received the same on his behalf. Having rejected the Applicant’s explanation and allowing two days for delivery by post, the Board found the NOA was filed one day late. As the Applicant’s explanation was rejected, there was no explanation for the delay. After directing itself to Section 37ZT of the Ordinance, the Board came to the conclusion that there was no good reason for the delay. There was no basis on which the Board may exercise any discretion to allow the late filing of the NOA which was therefore refused.

Legal principles applicable to judicial review

16. The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. 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 feasibility of internal relocation and in this case, circumstances relating to late filing of NOA. The court will scrutinize 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[7].

Grounds for judicial review

17. The grounds of judicial review as stated in his Form 86 are that the Director reached the Decision wrongly, the Decision is unreasonable and unfair, and that his right to life is protected. He gave no particulars as to what is wrong with the Decision, what is unreasonable and unfair. In the absence of specific grounds of application or grounds with sufficient particulars, the Court could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision.

Discussion and conclusion

18. The issue raised by this leave application is the propriety of the Board’s Decision refusing the Applicant’s late filing of the NOA, not the merits of his non-refoulement claim. Hence, merits of his non-refoulement claim is totally irrelevant.

19. For reasons as stated in Paragraphs 14 and 15, the Board found the Applicant had provided no explanation for the delay, albeit of only one day. He has provided no evidence in writing which could satisfy the Board that he had exercised all due diligence to file the NOA within time but failed because of circumstances beyond his control. Though not so expressly mentioned, the Board obviously had no knowledge of any other relevant facts which would support his late filing. The Board had directed its mind to the relevant provisions under the Ordinance relating to late filing of the NOA. It applied the law correctly to the facts it found and came to the inevitable conclusion that the Applicant had failed to satisfy the Board that he had exercised all due diligence to file the NOA within time but failed because of circumstances beyond his control.

20. Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles relating to late filing of NOA; correctly identified the issues raised by the late filing and observed a very high standard of fairness. The Board made its decision in accordance with Section 37ZT. The Decision is one of finding of fact and applying the law to the facts. The facts found or relied on by the Board are incontrovertible. In any event, such finding is solely within the province of the Board to make which the court in a judicial review will not interfere save for errors of law, procedural unfairness and irrationality. This Court could not detect any error of law in the Board’s finding of fact or its application of the law to the fact. This Court could find no procedural unfairness at any stage of the proceedings. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success. For the above reasons, leave to apply for judicial review is refused.

Dated 3^rd day of January 2024.

( Allen LEE )
for Registrar, High Court

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Notesfor the Applicant: If leave has been granted, the Applicant or his solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted(Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 3/1/2024 Bal Tamang Chandra Bahadur Applicant’s ref. no: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 3/1/2024 Torture Claims Appeal Board / Non-Refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 15684/19/3/49/N599 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 5163/18 (Formerly RBCZ 12805/15) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)

Form CALL-1

[1] Risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

[2] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”)

[3] Risk of persecution by reference to the non-refoulement principle under Article 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol

[4] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383

[5] CACV 63/2015 (unreported) 3 November 2015

[6] (2007) 10 HKCFAR 676 at 693B to C, per Litton NPJ

[7][2018] HKCA 524 at [14(1)]

BAL TAMANG CHANDRA BAHADUR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE [Decision on Leave Application]

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