GURUNG MINU v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL1430/2018

[2019] HKCFI 552

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1430 of 2018

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)  An extension of time for the application for leave to apply for judicial review of the decisions of the Torture Claims Appeal Board dated 22 February 2017 and 2 March 2018 be refused; and

(2)  Leave to apply for judicial review be dismissed.

It is further directed that:

(1)  If the applicant intends to appeal against the order refusing to extend the period for making the application for leave to apply for judicial review to the Court of Appeal, she must first apply to this court within 14 days of the date of this order by way of summons for leave to appeal;

(2)  When filing the application for leave to appeal, the applicant must at the same time file with the court written submissions of not more than 5 pages in support of the application for leave to appeal;

(3)  The court will thereafter decide whether it is necessary to direct the summons and the written submissions to be served on the putative respondent(s) and whether the application for leave to appeal shall be determined on paper;

(4)  If the court decides that the application for leave to appeal shall be determined on paper, it will proceed to do so without further directions; and

(5)  Liberty to apply.

Observations for the Applicant (Order by Deputy High Court Judge K.W. Lung):

THE APPLICATION

1.  This is the applicant’s application for leave for judicial review against the decision of the Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) and the Director of Immigration (“the Director”).

The applicant

2.  The applicant is a Nepalese national. She came to Hong Kong on 26 May 2013 and was permitted to stay as a visitor until 31 May 2013. She overstayed without the Director’s permission and was arrested by police on 5 February 2014. On 6 February 2014, she was referred to the Immigration Department for further investigation. She lodged her non-refoulement claim on 7 February 2014.

3.  She claimed that if she was returned to Nepal, she would be ill-treated or even killed by people from the Maoists in Thalajung village.

4.  In her statements to the Director and the Board, she said that she was invited to join the Maoist group in 2003 when she was 15 years old. She refused. In 2012, she was again asked to join the Maoists and she was one week to make her decision. She moved to Kathmandu, where she worked as a cleaning worker for 8 months. She decided to come to Hong Kong though during this period of time, she did not meet the Maoists.

The Director’s Decisions

5.  The Director considered her application in relation to the following risks:

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (Risk of violation of the right to life) (“BOR 2 risk”);

c.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of the HKBOR (“BOR 3 risk”); and

d.  reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk under RC”).

6.  By Notice of Decision dated 15 May 2015 (“the Director’s Decision”) and Notice of Further Decision dated 30 March 2017 (“the Director’s Further Decision), collectively called “the Director’s Decisions”, the Director refused her application for the reason that her non-refoulement claim was not substantiated.

The Board

7.  The applicant appealed to the Board. She attended a hearing on 9 August 2016.

8.  By Decision dated 22 February 2017 (“the Board’s Decision”), the Board refused the applicant’s appeal on the Director’s Decision and confirmed the Director’s Decision.

9.  By another Decision dated 2 March 2018 (“the Board’s Further Decision”), the Board refused the applicant’s appeal on the Director’s Further Decision and confirmed the Director’s Further Decision.

10.  Having considered the evidence, the Adjudicator rejected the applicant’s claim. He found that state or state agents were not involved and the applicant was not or would not be under real risk of torture by Maoist [7, 9 & 11]; state protection was available to her and therefore relocation was an option for her [22] and her situations fell far short of Persecution risk under RC [27].

11.  The Adjudicator also had doubt on the credibility of the applicant taking into account of the factors that she did not raise any claim for 8.5 months whilst she was in Hong Kong and that she had refused to answer some of the questions put to her by the Adjudicator [30].

Application for leave for judicial review

12.  By Form 86 dated 20 July 2018, under Order 53, rule 3(2) of the Rules of the High Court, the applicant applied for leave for judicial review of the Director’s Decisions and the Board’s Decisions.

13.  In her affirmation in support of her application, the applicant set out the reasons in support of her application below:

(1)  she did not have legal representation for the appeal to the Board;

(2)  BOR 2 risk was determined without any legal representation;

(3)  she did not have legal assistance for this application; and

(4)  the Board’s Decision and Further Decision were not translated for her.

DISCUSSION

The Director’s Decisions

14.  In my view, the applicant is not entitled to apply for judicial review of the Director’s Decisions without exceptional circumstances.  In Haider Zeeshan v Torture Claims Appeal Board / Non-Refoulement Claims Petition Office and The Director of Immigration HCAL 806/2018, I had held that an applicant, without exceptional circumstances, is not entitled to apply for judicial review of the Director’s Decision because the Board has been established by legislation to deal with appeals against the Director’s Decisions and this Board has wider power than this Court to make investigations in the matter. The Board had heard her appeal and made its Decision.

15.  Since the applicant has not set out any exceptional circumstances, her application for leave simply fails in limine.

16.  For the reasons above, I dismiss the applicant’s application for leave for judicial review of the Director’s Decisions.

The Board’s Decisions

17.  Under Order 53, rule 4(1) RHC, the applicant has to take out her application for leave to make an application for judicial review within 3 months from the date when the grounds for the application first arose.

18.  The applicant is out of time for making her application for leave for judicial review of the Board’s Decision (dated 22 February 2017) or the Board’s Further Decision (dated 2 March 2018). In accordance with the decision of the Court of Appeal in Kwok Cheuk Kin v Leung Chun Ying [2018] HKCA 419, CACV 110/2017 and CACV 162/2017, 23 July 2018, her application cannot proceed without this Court granting her an extension of time. See §28.

19.  The applicant has not made an application for extension of time though she had admitted in her affirmation that she was late in making this application. Nor had she given any good reason for this Court’s consideration.

20.  The consideration of whether time should be extended for the applicant to take out this application should be the same as held by the Court of Appeal in   Khan Mohammad Shadab [2018] HKCA 897, CAMP 75/2018, 4 December 2018, namely, (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted.

21.  This Court considers that there is no reasonable chance of success for the intended appeal for the reasons below.

22.  The applicant appeared before me. She confirmed that she had no complaint against the Adjudicator and she considered that the appeal hearing was a fair hearing. She was free to give all her facts to the Adjudicator.

23.  The applicant said that the Board’s Decisions was explained to her by her family. She had no problem with that. Ground (4) therefore fails.

24.  The Court of Appeal in  Re: Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018, Lam VP [22] had said: “This Court has repeatedly held that neither the high standard of fairness laid down in Sakthevel Prabakar v Secretary for Security (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51 of 2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, and Re Lopchan Subash [2018] HKCA 37. The applicant already had the benefit of legal representation in presenting his case to the Director of Immigration.  We do not find anything amiss arising from lack of legal representation in the process before the Board.” The applicant had already had legal representation when she first appeared before the Immigration officer for the screening.

25.  Grounds (1) to (3) fail too.

26.  The applicant fails to show that she has a reasonable chance of success in her proposed judicial review.

CONCLUSION

27.  Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant her an extension of time for the judicial review. Accordingly, I dismiss her application.

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

Form CALL-1