DAS BINDHA v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL 1596/2018

[2020] HKCFI 215

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1596 of 2018

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

(1)  Extension of time for application for leave to apply for judicial review of the decision of Torture Claims Appeal Board dated 19 May 2017 be refused; and

(2) Application for 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:

THE APPLICATION

1.  The applicant is not legally represented and she did not request an oral hearing. In the course of hearing similar applications, this Court discovered that most of the applicants appearing in person had no idea of the purpose of judicial review, which is for this Court to examine whether they had had a fair hearing at the Board. They asked the Court to re-examine the facts of the case. The Court will not re-examine the facts in support of the claim. See Re Ali Haider CACV8/2018, [2018] HKCA 222 at §§ 13 & 14. The Court therefore, pursuant to Order 1B, rule 1 (2)(c) of the Rules of the High Court (“RHC”), by letter, invited the applicant to appear before it in order to explain the above to them. At the same time, the Court will examine if the parties in Form 86 are correct. The Court will also see if there are any further grounds in support of the application. In response to the Court’s invitation, the applicant attended the hearing on 26 July 2019.

2.  This is the applicant’s application for leave to apply for judicial review against the respective decisions of the Adjudicator of the Torture Claims Appeal Board/ Non‑refoulement Claims Petition Office (“the Board”) and the Director of Immigration (“the Director”).

3.  However, her application is late. As will be seen below, she cannot apply for leave to apply for judicial review of the Director’s Decision as she had already appealed against his decision to the Board, which has a wider power of investigation than this Court. See Re: Moshsin Ali CACV 54/2018, [2018] HKCA 549, 24 August 2018 at §45. If she wants to apply for leave to apply for judicial review of the Board’s Decision, under Order 53, rule 4 of the RHC, she has to take out her application within three months from the date when grounds of the application first arose, i.e. the date of the Board’s Decision. The Board’s Decision is dated 19 May 2017 and her application by Form 86 is dated 10 August 2018. There is a gap of over one year and two months.

4.  In the case AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015,the Court of Appeal held that whenever there is a failure to act promptly or within three months, there is “undue delay” [26]. Where there is an application to the court for extension of time for judicial review, the court has to take into consideration: (i) the length of the delay; (ii) explanation for the delay; (iii) merits of the substantive application; (iv) prejudice and (v) questions of general public importance [27(3)]. Although merits of the challenge of the administrative decision are a significant matter to be taken into account, it is by no means the sole criterion.  Where an applicant is many months out of time, leave may be refused “however strong the complaint might otherwise be” (Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676 at 693B to C, per Litton NPJ).  “An applicant who sleeps upon his rights may be barred from pursuing them in judicial review even though he may have a meritorious case.” (Law Chun Loy v Secretary for Justice, HCAL 13/2005, 26 October 2006) [27(3)(iii)].

5.  I explained the law to the applicant and asked her for her explanation. She said that she was sorry for being late. She was simply following other people, who had made applications to the High Court. She had no other explanation for her delay.

6.  I do not accept the reason above as good explanation.

7.  I shall, nevertheless, set out below that the applicant’s intended judicial review of the Board’s Decision to show that in fact, her intended judicial review has no reasonable prospect of success.

The applicant

8.  The applicant is a national of India. She first came to Hong Kong in 1996 as a domestic helper and was permitted to stay as such for many years, last entering Hong Kong as a domestic worker on 19 July 2013. She subsequently applied to overstay as a visitor and was permitted to stay until 26 March 2014. She overstayed without further permission. She surrendered herself to the Immigration Department on 23 June 2014. She lodged her non-refoulement claim on 23 June 2014.

9.  She claimed that if refouled, her life would be threatened by the Muslim people in her neighbourhood as she is a Hindus herself and she had conflicts with her neighbours. Her family was residing in a Muslim area. Ever since they moved to this area, the Muslim people caused troubles to her. The Muslim children jumped into her terrace without permission, poured water on the firecrackers and swore at them when they were celebrating Diwali. They were drying clothes on her terrace without permission. She confronted with them. She was surrounded by them and they told her to leave the house. There was a scuffle with them and she was pushed over and twisted her left ankle. They threatened to kill her.

The Director’s Decisions

10.  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. risk of persecution by 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”).

11.  By Notice of Decision dated 15 July 2016 and Notice of Further Decision dated 8 May 2017, the Director rejected her claim for the reason that her claim was not substantiated.

The Board’s Decision

12.  The applicant appealed to the Board and she attended a hearing before the Adjudicator on 9 May 2017.

13.  By Decision dated 19 May 2017 (“the Board’s Decision”), the Board refused her appeal and confirmed the Director’s Decisions.

14.  The Board considered the applicant’s case and found that it only accepted that she is a national of India, but beyond that it concluded that she had not established any of the facts as alleged [41].

Application for leave to apply for judicial review

15.  In her Form 86 under Order 53, rule 3(2) of the Rules of the High Court, the applicant applied for leave to apply for judicial review of the Director’s Decisions and the Board’s Decision respectively.

16.  In her affirmation in support of her application, she did not set out any particular reasons.

DISCUSSION

17.  The applicant appeared before me. She was evasive when she answered my questions. She did complain that before the Adjudicator she was told by the interpreter to say yes to the questions put to her. She was unable to give any particulars. I have no reason to rely upon her evidence.

18.  The applicant cannot apply for leave to apply for judicial review of the Director’s decision. Re. Moshsin Ali [2018] HKCA 549.

19.  As the Board did not accept her evidence on the facts, she has no factual basis in support of her claims.

20.  I find that the applicant fails to show that she has a reasonable chance of success in her proposed judicial review.

CONCLUSION

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

22.  It is further directed that:

1. If the applicantintendsto 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.

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