RE PHAGAMI MANGALA KUMARI

CACV 361/2019

[2019] HKCA 1386

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 361 OF 2019

(ON APPEAL FROM HCAL NO. 42 OF 2018)

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J U D G M E N T

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Hon Cheung JA (giving Judgment of the Court) :

1)    The appeal

1.1     This is an appeal against the decision of Deputy High Court Judge Bruno Chan who refused to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board (‘the Board’).

1.2     The applicant failed to comply with the directions of the Registrar of Civil Appeals of 14 August 2019 and did not file her skeleton submissions within the time specified.  As a result, the hearing fixed for 12 November 2019 has been vacated.  We will deal with the appeal on paper.

2)    Background

2.1     The applicant is a national of Nepal.  She arrived in Hong Kong as a visitor and overstayed.  She was referred to the Immigration Department and she subsequently raised a non‑refoulement claim on the basis that she would be harmed or killed by her abusive husband and by her creditor for failing to repay her loan.

2.2     The details of the applicant’s claim have been summarized by the Judge at [2] to [5] of the CALL‑1 Form.

3)    The Director’s Decision and Further Decision

3.1     The Director of Immigration (‘the Director’) decided against the applicant’s claim on 22 June 2015.  The decision covered the applicant’s rights under Article 3 (right against torture and cruel and inhuman treatment etc), as well as his other statutory and convention rights against torture and persecution (‘the Director’s Decision’).

3.2     The Director further decided against the applicant’s right to life claim under Article 2 of the Bill of Rights (‘BOR 2’) on 28 October 2016.  The applicant did not submit to the Director additional information or materials to substantiate any right to life claim despite being invited by the Director to do so (‘the Director’s Further Decision’).

4)    The Board’s Decision

4.1     The applicant appealed against the Director’s Decision to the Board on 6 July 2015.  After a hearing held on 15 November 2016, the Board dismissed the applicant’s appeal against the Director’s decision on 6 April 2017.  The Board’s decision also covered the Director’s Further Decision.

4.2     The Board found that state protection and internal relocation alternatives were available to the applicant.  There was no justification for the applicant seeking non‑refoulement protection in Hong Kong.  It was found that there was no intention of the husband in killing the applicant.  The creditors of the applicant were purely urging for repayment.  The applicant’s fear of ill‑treatment was localized.

5)    Decision of the Judge

5.1     The applicant essentially complained before the Judge matters concerning procedural unfairness and failure to apply high standards of fairness.

5.2     The Judge found that this was not the first time the applicant applied for leave for judicial review.  In HCAL 173/2017, the applicant was before Deputy High Court Judge Woodcock who refused her application for leave for judicial review.  As this was the second time that the applicant had made the same application, it was an abuse of process.  The application for leave for judicial review was therefore struck out.

6)    Grounds of appeal

6.     It is difficult for this Court to understand the applicant’s handwritten grounds of appeal.  Doing the best we can, the applicant stated in her notice of appeal the following grounds :

(1) The Judge did not give a good reason for dismissing her claim.  The system is wrong;

(2) She was not provided with a lawyer;

(3) The Judge was not neutral.

7)    Our view

7.     We see no error in the Judge’s decision.  We agree that there is a clear abuse of process by the applicant in bringing a second application for the same relief after the first one had been dismissed.  Accordingly the appeal is dismissed.