RE RAI GITA

CACV 142/2020

[2021] HKCA 436

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 142 OF 2020

(ON APPEAL FROM HCAL NO. 802 OF 2017)

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J U D G M E N T

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The Court:

1.  This is an appeal against the decision of Campbell-Moffat J given on 15 May 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 13 October 2017 dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 20 February 2017 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Nepal.  She entered Hong Kong on 7 January 2010 illegally and was arrested by the police on the same day.  She lodged a torture claim on 10 January 2010. 

3.  The applicant’s claim was based on threats from the Maoist party in Nepal.  The details of the applicant’s claim have been summarised by the judge at [4] of the CALL-1 Form.

4.  By a Notice of Decision dated 16 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.  The applicant appealed to the Board on 28 April 2015.  The Board dismissed the appeal on 1 February 2017 (“the Board’s Decision”).  At [18], [23] and [28] of the Board’s Decision, the Board did not believe that the applicant will suffer from any of the proscribed harms upon her return (except BOR 2 risk which was not considered by the Board in that decision).

6.  By a Notice of Further Decision dated 20 February 2017, the Director also assessed the applicant’s claim based on the BOR 2 risk^[4], and decided against her. 

7.  For the Director’s decision dated 20 February 2017, the applicant again appealed to the Board.  The Board considered the material before it and decided that the applicant has not established a case for protection from BOR 2 risk.  The Board dismissed the appeal on 13 October 2017 without a hearing.

The judge’s decision

8.  The applicant filed a Form 86 on 24 October 2017 against the decision of the Director on 20 February 2017 and the Board’s decision on 13 October 2017.  The Form 86 contained no ground for seeking relief.

9.  In her affirmation in support of the leave application dated 24 October 2017, the applicant exhibited the relevant documents without giving any ground for judicial review.

10.  The applicant did not request an oral hearing before the judge, who accordingly dealt with the application on paper.

11.  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 [9] to [12] of the CALL-1 Form:

“9. Judicial review is not a rehearing of the merits of the applicant’s original application for refugee status. This is an application to apply for leave to judicially review the decision of the Adjudicator in respect of BOR 2. The applicant must show an arguable case that there was either unlawfulness, unreasonableness or unfairness by those bodies or persons when dealing with her application in order to obtain leave to judicially review them.

Grounds of review

10. There were no grounds of review. The applicant seeks a re-hearing of her appeal. She has not complained of any procedural irregularity, unfairness or unreasonableness. The applicant has a duty to state the grounds of her intended judicial review and show that they are reasonably arguable and enjoy a realistic prospect of success: Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676. I have nevertheless considered whether the papers indicate any such ground for the purposes of considering whether to grant leave.

Conclusion

11. Despite the fact that the applicant did not submit any grounds of review, I have considered the papers carefully. I have not found any error of law or procedure. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness throughout. Despite the onus being upon the applicant, the Adjudicator engaged in a joint endeavour with the applicant and considered all relevant criteria; gave the applicant a reasonable opportunity to state her case originally and enquired into that case appropriately. She chose not to answer questions and not to supplement her claim as originally submitted. He cannot be criticised for failing to hold a hearing in respect of her appeal against the Further Decision. There is no criticism of his determination, which was open to him on the facts and reasonable.

12. In my judgement, there is no reasonably arguable basis upon which the applicant could found a claim for judicial review and, as such, there would be no realistic prospect of success if she were to be granted leave.  I therefore refuse leave for judicial review.”

Grounds for appeal

12.  In the Notice of Appeal dated 27 May 2020 and the affirmation in support filed on the same day, the applicant contended that:

“the [judge] was wrong in law in holding that there was no state acquiescence or involvement.

the [judge] failed to provide detailed reason in support of this decision.”

13.  The applicant failed to comply with the direction made by this court on 22 September 2020 requiring her 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 15 December 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

14.  In relation to the ground of appeal based on state acquiescence, we observe that this ground was never 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)). 

15.  As for the ground based on the alleged lack of reasoning, the judge has already explained at [10] - [11] of the CALL-1 Form that the applicant has failed to identify any ground for judicial review and that there was apparently no public law error in the Board’s decision.  We are therefore of the view that the judge has given sufficient reasons for her decision.  This ground is also without merit.

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