RE GURUNG SANTA BAHADUR

CAMP 177/2021

[2022] HKCA 1488

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 177 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 1791 OF 2018)

__________________________

__________________________

___________________

J U D G M E N T

___________________

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

1.  This court handed down judgment on 1 April 2022 ([2022] HKCA 490) (“the CA Judgment”) dismissing the applicant’s application (“the Application”) to extend time to appeal against an order of DHCJ KW Lung (“the Judge”) given on 30 June 2020, in which he refused to grant leave to the applicant to apply for judicial review in respect of his non‑refoulement claim.

2.  The facts and issues in the Application before this court, as well as the court’s reasons for dismissing it, are set out in the CA Judgment and will not be repeated here.

3.  After the handing down of the CA Judgment, by a letter dated 8 Aril 2022 to the Court, the applicant requested this Court to reconsider the Application at an oral inter-partes hearing (“the Request”). He further stated that the Request was based on his understanding of the procedures set out in the “Civil Justice Reform – Guide to General Civil Proceedings in the High Court – No 1 Booklet on ‘How to Appeal’ on page 11, point No 38 Part C: Civil Appeal to the Court of Appeal”.

4.  By a letter dated 1 June 2022, Yuen JA directed that the Court was functus officio and had no power to deal with the Request as the Court had dismissed the Application by way of the CA Judgment and the order had been sealed.

5.  On 14 June 2022, the applicant filed a Notice of Motion dated 3 June 2022 for leave to appeal to the Court of Final Appeal against both the CA Judgment and the Court’s “decision” not to accede to the Request.

6.  In compliance with the directions of the Registrar of Civil Appeals made on 14 June 2022, the applicant lodged his written submissions in support of the Notice of Motion on 27 June 2022.

7.  In his written submissions, he stated that an oral hearing is important so that he would be able to put forward evidence to substantiate and explain his arguments properly, as his oral English was much better than his written English. He complained that there was a lack of legal assistance for him to deal with the proper procedure for his appeal. He repeated his reasons for his delay in filing his Notice of Appeal against the Judge’s order and said that delay in any event had caused no prejudice to the “Respondent” (ie TCAB) and the “Interested Party” (ie Director of Immigration). Lastly, he complained that this Court was biased in endorsing the Judge’s decision as it was the task of “fact finder” to review the evidence in rounds and assess them with reference to all the statements made by the applicant. In support, he quoted some general principles set out in a UK case[1] without, however, showing how these principles specifically relate to any errors in the CA Judgment.

8.  He also put forward in the written submissions the following question (“the Question”) to be considered by the “Appeals Court”:

“It should be brought to the court’s attention that it is purely my lack of knowledge in dealing with the proper procedures. I cannot find any proper assistance inside the prison as no one would offer me legal advice here, even calling a lawyer is difficult. I respectfully ask this Honourable Court to make an order allowing me to have the ‘Ex-parte’ Motion/Notice of Motion accepted by the Courts in the fairness of Justice” (sic)

9.  After reading the Notice of Motion and the written submissions, we consider it appropriate, in accordance with the usual practice, to determine this Notice of Motion on paper without an oral hearing.

10.  Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (“HKCFAO”) Cap. 484 provides that leave to appeal to the Court of Final Appeal may be granted if the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision.

11.  Insofar as the intended appeal against the Court’s “decision” not to deal with the Request is concerned, it is plainly without merits as the applicant has failed to point to any errors therein and how the intended “appeal” against that “decision” could satisfy the requirements under s.22(1)(b) of the HKCFAO. Leave is not granted in relation to this part of the Notice of Motion.

12.  Insofar as the intended appeal against the CA Judgment is concerned, it was made out of time, as s.24(2) of HKCFAO stipulates that the deadline for filing an appeal from a judgment of the Court of Appeal is 28 days from the date of the judgment to be appealed from. In relation to the CA Judgment, the period for filing the Notice of Motion expired on 29 April 2022.

13.  However, under s.24(5) and s.24(6) of the HKCFAO, the Court of Appeal has a discretion to extend the appeal period even though the application for extension of time is not made until after the expiration of that period. In the exercise of our discretion whether or not to extend the appeal period, we should consider the length of the delay, the applicant’s reasons for the delay, the merits of the intended appeal, and whether any prejudice would be suffered by the other party.

14.  In the present case, the applicant was late for about 6 weeks in filing the Notice of Motion, which is significant. He stated in the Notice of Motion that he had made the Request within 7 days after receiving the CA Judgment. He further claimed that he had waited for several weeks but there was no reply.

15.  The proper way to appeal against the CA Judgment is by way of filling a Notice of Motion and the applicant had failed to do so within time. The fact that the applicant had made the Request within time does not amount to a good reason for the delay. As we have said at [13] of the Judgment (in rejecting his then reasons given to explain why he had failed to appeal the Judge’s order within time), it is well-established that ignorance or misunderstanding of the law and lack of legal assistance are not excuses for delay.

16.  In any event, more importantly, the applicant has not shown any merits in his intended appeal against the CA Judgment.

17.  What he has set out in his written submissions and the Notice of Motion are plainly unarguable and in any event do not satisfy the requirements of s.22(1)(b) of the HKCFA.

18.  First, none of the matters he has stated in the written submissions and the Notice of Motion identify with particulars any errors in the CA Judgment. On this basis alone, they are not viable grounds of appeal.

19.  Second, his claim that he has evidence to substantiate his case by way of oral submissions is nothing but a mere assertion, as he has not even indicated in the written submissions the nature of this “evidence” and the reasons why he did not produce or advance it when he attended the oral hearing before the Judge.

20.  Third, the complaint that this Court was “biased” is again nothing but an assertion not supported by any particulars.

21.  Lastly, the Question posed is clearly not a question of great general or public importance as the law on procedures is well settled and in any event, his complaint is fact-specific only to his case.

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

23.  For the above reasons, his intended appeal to the Court of Final Appeal is plainly without merits and also does not satisfy any of the statutory requirements for granting leave to appeal. It is therefore futile to grant him any extension of time. We therefore dismiss the Notice of Motion.

The applicant, unrepresented, acting in person

CAMP 177/2021

[2022] HKCA 490

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 177 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 1791 OF 2018)

___________________________

___________________________

___________________

J U D G M E N T

___________________

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

1.  On 30 June 2020, DHCJ K.W. Lung (“the Judge”) refused to grant leave to the applicant to apply for judicial review concerning his non-refoulement claim (“the JR Decision”). Under Order 53 r.3(4) Rules of the High Court (“RHC”), where an application for leave to apply for judicial review is refused by a judge, the applicant may appeal against the judge’s order to the Court of Appeal within 14 days after such order.

2.  The applicant did not lodge an appeal in time.  He filed a summons in the Court of First Instance on 26 January 2021 for extension of time to appeal against the JR Decision.  The summons was dismissed by the Judge on 20 April 2021. 

3.  On 20 May 2021, the applicant filed a summons in CAMP 177/2021 (“the Summons”) in the Court of Appeal applying to this court for an extension of time to appeal the JR Decision.

4.  Directions were made by the Registrar of Civil Appeals on 23 June 2021 that the applicant should lodge his written submissions on or before 7 July 2021.  However, he failed to do so.  The Registrar further directed that in the event the applicant failed to lodge his written submission as directed, he shall be deemed to have abandoned his right to rely on written submissions, and the Court of Appeal will determine the application based on the available materials.

5.  Under Order 59 r. 14A(1) RHC, this Court may determine an application for extension of time to appeal without an oral hearing.  We are of the view that it is appropriate to determine the present application on paper without a hearing.  

Background

6.  The applicant is a Nepalese national.  He came to Hong Kong on 27 September 2013 as a visitor and was allowed to stay until 2 October 2013. He overstayed and surrendered to the Immigration Department on 29 September 2014.  He lodged a non-refoulement claim on 26 November 2014 alleging that if refouled, he would be harmed or even killed by the people of the Communist Party of Nepal (Maoist) (“CPN(M)”) as he was a supporter of the Nepalese Congress Party (“NCP”), a rival party to CPN(M).  He claimed that his name was put on CPN(M)’s wanted list as he had taken part in a fight with the members of CPN(M) in 2013.  The factual background of this case was succinctly summarised by the Judge at [6] of the JR Decision ([2020] HKCFI 1370).

7.  By a Notice of Decision dated 17 April 2018, the Director of Immigration (“the Director”) had decided against the applicant’s claim.  The Director’s decision covered the BOR 2 risk[1], the BOR 3 risk[2], the torture risk[3] and the persecution risk[4]. 

8.  The applicant appealed the Director’s decision to the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”).  The applicant attended an oral hearing on 2 August 2018 and by its decision dated 16 August 2018, the Board dismissed the appeal and confirmed the Director’s decision.  For the reasons set out at [11] to [34], the Board found that the applicant's evidence (even as to the age when he joined the NCP, and if or where he was studying during a student union election) were inconsistent.  Even if he had participated in the student union election campaign, his role would have been peripheral as someone who had just gone to lend support.  As for the fight in 2013, with the long lapse of time, there was no good reason for the CPN(M) to even remember him when the confrontation involved over 100-150 people of NCP and 200 people of CPN(M).  On the totality of the evidence, the Board did not accept the applicant’s allegations that he would be at risk of harm from the CPN(M) if refouled and rejected his non-refoulement claim on all applicable grounds.

Application for leave to start judicial review

9.  On 31 August 2018, the applicant filed a Form No. 86 to apply for leave to judicially review the Board’s decision.  In his supporting affirmation in support of his application, he advanced the following grounds for relief:

(1)  he was not educated;

(2)  no lawyer was provided to him for advice;

(3)  the Board decided the case on assumptions; and

(4)  in the absence of evidence to prove his case, the Board cannot infer that he had no case.

The JR Decision

10.  The applicant attended an oral hearing before the Judge on 2 January 2020.  After due consideration, the Judge refused leave for the following reasons set out in [14] - [18] of the JR Decision:

“14.   The Court of Appeal in Re Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018 §22 held that the applicant is not entitled to free legal representation at every stage of the proceedings as he had already had duty lawyer’s service at the screening stage.

15.   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 [maker] 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.

16.   In light of the above authority and the fact that other grounds are only his personal opinions without any evidence or particulars in support of them, his grounds for his application do not sustain.

17.   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.

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

Application for extension of time to appeal the JR Decision

11.  As mentioned earlier, the applicant failed to file a notice of appeal within time.  He filed a summons in the Court of First Instance on 26 January 2021 for an extension of time to appeal.  That was dismissed by the Judge on 20 April 2021.  Hence, the Summons to this court. 

Discussion

12.  In considering whether to extend time for appealing, the Court will have regard to: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of success of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted (although the lack of prejudice does not mean an extension will be granted).  As for (1), the applicant was late by more than 6 months between the deadline for filing his appeal against the JR Decision and the summons filed in the Court of First Instance.  His delay was substantial.   

13.  As for (2), the reasons for the delay, the applicant claimed before the Judge that he is illiterate and legally unrepresented, and therefore he was not aware of the legal procedures and the time limit to file his appeal against the JR Decision[5].  However, it is noted that his summons and affirmation were typed in English, so clearly he has been able to obtain language assistance in the immigration detention centre. It is further well-established that ignorance of the law and lack of legal assistance are not excuses for delay.  In the present application before us, he further claimed that he was late as he “had neither the appropriate means nor I received the decision on time”[6].  These mere assertions are not supported by any evidence or particulars and do not amount to good reasons for the delay.

14.  The most important consideration is (3) the prospect of success of the intended appeal from the JR Decision.  The applicant did not provide any grounds of appeal against the JR Decision except to say that the Judge’s decision was unfair. 

15.  In the Summons and supporting affirmation filed in this Court, he complained that the Judge reached his decision unfairly and did not allow him an opportunity to clarify his case and the situation of his country.

16.  In our judgment, the applicant’s complaint is groundless.  Even though he had not requested an oral hearing, the Judge nevertheless directed that there should be a hearing so that he could make oral submissions.  He duly appeared before the Judge on 2 January 2020. 

17.  The Judge found that the applicant’s grounds of complaint against the Board’s decision were no more than his mere disagreement and personal opinion unsupported by any evidence or particulars and the grounds were unsustainable. 

18.  We are satisfied that the Judge had conducted the hearing fairly and we see no error of law or procedural unfairness.  We are also satisfied that the Judge had reviewed the Board’s decision with rigorous examination and anxious scrutiny and we find nothing amiss in the JR Decision.

19.  As the intended appeal is unarguable, it would be futile to extend the time to appeal.  Accordingly, we dismiss the applicant’s summons filed on 20 May 2021.