CHAUDHARY MANKAMANA KUMARI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2982/2019

[2025] HKCFI 1637

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2982 of 2019

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 oral submissions by the Applicant in open court;

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

2.  Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 10 October 2019 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 2 June 2017 (the “1^st Decision”) dismissing her appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 17 June 2015 (the “1^st Notice”), refusing her application for non-refoulement protection.

Background

2.  The Applicant is a Nepalese national, now aged 38. She entered Hong Kong illegally and was arrested by the police on 18 November 2010. She then lodged a torture claim which was converted into a claim under the Unified Screening Mechanism (“USM”). Her USM claim was assessed and rejected by the Director under Torture Risk[1], BOR 3 Risk[2] and Persecution Risk[3] grounds via his 1^st Decision. By a Notice of Further Decision dated 17 August 2017 (the “2^nd Notice”), the Director also rejected her claim under BOR 2 Risk[4] ground. She appealed against both the 1^st Notice and 2^nd Notice. Her appeals were dismissed by the 1^st Decision and the 2^nd Decision of the Board dated 2 June 2017 and 30 August 2019 respectively. She now applies for leave to apply for judicial review of the Board’s 1^st Decision, but not the 2^nd Decision.

The Applicant’s case

3.  The Applicant’s father was employed as a farm worker in Nepal by Ms Partika. She also worked as a housemaid for Ms Partika since the age of 5 or 6. She was told by Ms Partika that her father was unable to repay a loan borrowed from Ms Partika for her mother’s medical expenses. Hence, she had to work for Ms Partika until such time as Ms Partika called for the repayment of the loan. Ms Partika ill-treated her. In October 2010, she learned about a girl from the nearby village was kidnapped by members of the Maoists Party and raped. Out of fear of Ms Partika and the Maoists, she escaped to Kathmandu by hiding in a lorry. There, she met a woman who arranged for her passage to Hong Kong upon payment of 50,000 to 60,000 Nepalese Rupees which she had saved while working for Ms Partika. In gist, her claim is based on her fear of ill-treatment by her employer and by the Maoists.

Explanation for the late application

4.  The leave application was filed 28 months and 8 days 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, the leave application was lodged 25 months and 8 days out of time. Extension of time to apply is required.

5.  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, particularly merits, 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 application 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 PJ. The delay in this case is so substantial that leave may be refused on this ground alone without considering the merits of the substantive application, unless the Applicant has a reasonable and credible explanation for the delay.

6.  Despite clear warning in the Form 86 that an applicant is required to state her grounds for application and reasons for delay, if any, the Applicant provided neither. At the hearing, the Court attempted to explore her explanation for the delay with her. She said she did not know she had to file an application for judicial review. She felt safe in Hong Kong and hence did nothing about the Decision. She sneaked into Hong Kong all the way from Kathmandu. She applied for protection. Her application was rejected by the Director. Her appeals against the Notices were dismissed. Though she felt safe in Hong Kong, she had exhausted all available legal remedies known to her. She must have known that if she did nothing about the Decision, she will be refouled. Even if she had no knowledge of the law, a reasonable person in her alleged position would at least have made inquiries from the secretariat of the Board. Had she done that within reasonable time, she would have been informed within three months of the date of the Decision that she had to apply for leave to apply for judicial review of the Board’s Decision. She has no reasonable explanation for the more than 25 months’ delay in filing the leave application.

7.  As the Applicant has offered no reasonable explanation for the substantial delay, the Court could have no factual basis on which to exercise its discretion to grant her extension of time to file the leave application. On the other hand, a person in genuine fear for his safety if refouled would have wasted no time to apply as this is his last opportunity to challenge the Board’s decision. The lack of a reasonable explanation for the very substantive delay in making the leave application not only evinced a lack of intention to prosecute her leave application, but also reflects an underlying lack of merits in her intended judicial review and her non-refoulement claim. Her conduct resulted in delay in her refoulement process. The delay is so inordinate as to be beyond the limit which any court could indulge. Her conduct is a clear abuse of legal process. Thus, extension of time to file the leave application is refused under the principle in Po Fun Chan v Winnie Cheung without the need to consider the merits of her leave application.

8.  Furthermore, after the legal principles applicable to judicial review had been explained to her, the Applicant submitted that she had made mistake in using the identity card of another person. She asked for a chance to be released from her present custody. She said she has a husband in Hong Kong who had sponsored her application for a dependent visa. But the Immigration Department required her to return to Nepal to make the application as her passport had expired. These facts do not constitute any arguable grounds for judicial review. Having also examined the Decision with anxious scrutiny, this Court cannot detect any errors of law, procedural unfairness or irrationality in the Decision which would make it unfair not to grant her extension of time to file the leave application.

Conclusion

9.  For the above reasons, extension of time to apply for leave to apply for judicial review and the leave application are refused.

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

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