LIMBU INA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 372/2019

[2024] HKCFI 2144

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 372 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 the Applicant being absent in open court;

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

2.  Leave to apply for Judicial Review be refused.

Observations for the Applicant (Order by Deputy High Court Judge To):

Introduction

1.  This is the Applicant’s application by Form 86 filed on 11 February 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 12 May 2017 (the “Decision”) dismissing her appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 21 January 2015 (the “2015 Notice”).

2.  A hearing was scheduled and notice of hearing was sent to the Applicant by post to her address as updated by her on 14 April 2022.  It has not been returned through the post.  She never informed the court of any further change of address.  There is nothing to suggest she had not received the notice or had moved.  However, she did not appear at the hearing.  Having considered the nature of the application and issues raised, the Decision, the papers, the applicable legal principles and all the circumstances, the Court considered that the leave application may be justly determined on paper without an oral hearing.

3.  The leave application was filed almost 21 months 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 almost 18 months out of time.  Extension of time to apply is required.  

4.  In AW and Director of Immigration and William Lam, 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 would be more relaxed with the remaining two.  Conversely, if it is against the grant of extension, there is no need to consider the remaining two factors.  However, as was held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung[1], where an application is many months out of time, leave may be refused “however strong the complaint might otherwise be”, per Litton PJ.  

5.  In her supporting affirmation filed with the Form 86, the Applicant explained the delay on the ground that she was not given a copy of the Decision nor was she informed of the Decision until she reported for recognizance to the Immigration Department in late January 2019 when she was informed that the Board had issued the Decision dismissing her appeal.

6.  Her explanation is just a bare assertion which is insufficient to explain the long delay.  A hearing was scheduled so that she may perfect her explanation.  The address she gave in her Form 86 is different from her address as stated in her Notice of Appeal (“NOA”) and the address to which the Decision was sent.  The Court would wish to be inform of the correspondence address she gave to the Board since filing of her NOA and whether and when she had updated her address with the Board.  It is difficult to understand, if her explanation is true, why the Immigration Department would not have informed her about the Decision when she reported her recognisance possibly a year earlier.  The Court would wish to be informed when she reported her recognisance in 2018.  However, she did not appear at the hearing and she forwent her opportunity to perfect her explanation.  This Court could not be satisfied that she had a reasonable explanation for the long delay.  The long delay and the absence of a credible and reasonable explanation are sufficient for this Court to refuse her leave to apply out of time: Po Fun Chan v Winnie Cheung.  For completeness, the merits of her leave application are briefly discussed below.

Background

7.  The Applicant is a Nepalese national, now aged 39.  She sneaked into Hong Kong on 12 May 2009 and was arrested by the police on the same day.  On 16 May 2009, she made a non-refoulement claim.  She was released on recognizance on 21 May 2009.

8.  She was arrested for some criminal offences on 22 June 2012, and was convicted and sentenced to 21 months imprisonment.  She was released on recognizance on 5 May 2014 after serving her sentence.  On 13 April 2015, she married a Hong Kong Nepalese man.

9.  In due course, her non-refoulement claim was assessed on all three applicable grounds then available under the Unified Screening Mechanism (the “USM”), namely: Torture Risk[2]; BOR 3 Risk[3] and Persecution Risk[4] grounds.   Her claim was dismissed by the Director’s Notice of Decision (the “2015 Notice”).  Her appeal against the 2015 Notice was dismissed by the Decision of the Board on 12 May 2017.  Two weeks later, on 26 May 2017, the Director issued a Notice of Further Decision (the “2017 Notice”) refusing her claim under BOR 2 Risk ground[5].  The applicant now applies for leave to apply for judicial review of the Decision.  Though she also sought a review of the Board’s decision relating to her BOR 2 claim, she had never appealed  the Director’s 2017 Notice relating to that claim and the Board had not made any decision relating to the Director’s 2017 Notice regarding her BOR 2 claim.

The Applicant’s case

10.  The following account of the Applicants’ case is mainly based on the information in the non-refoulement claim form (“NCF”) prepared by her with legal assistance and the record of her screening interview in the presence of her lawyer.  In gist, the Applicant claims that she will be at risk of the persecution by supporters of the different political parties in her home village, if she is returned to Nepal.

11.  The Applicant was born in Thaplejung District of Nepal.  She received education up to Class 8 in 2007.  She was married but has separated from her husband.  She has two children.  She earned her living by farming in her home village.

12.  In the Applicant’s area, there were different political parties.  Supporters of the different parties persecuted those of the other parties and harassed the villagers.  The Applicant’s family and herself were also victims.

13.  On a day in 2005, four to five days after giving birth to her second child, some 15 supporters armed with guns and knives forced into her house and pushed her to the ground hurting her sacral vertebrae.  The injury was not serious and she recovered in 25 days.  She did not seek police assistance for fear of revenge by the supporters.  From 2005 to 2007, the supporters visited her home a few times a week demanding donation and votes.  Towards the end of 2007, the Applicant and her family moved to Kathmandu where they stayed for 17 months.  She and her family never encountered any supporters in Kathmandu but she was worried that they might come to Kathmandu to find her.

14.  In 2010, the Applicant’s sister received a call from a stranger who demanded her to pay 100,000 Nepalese Rupees, otherwise the stranger would kidnap her and the Applicant’s children.  The Applicant was terrified and fled to India, leaving her children to the care of her friends.

15.  She does not believe the Nepalese authorities or police would give her protection as they are corrupt.  She does not believe internal relocation would be viable because of financial constraints and the lack of employment opportunities.

The finding of the Board

16.  The Board accepted on the basis of authoritative and credible country of origin information (“COI”) that during the civil unrest in Nepal between1996 and 2006, it was possible that members of different political parties might have acted oppressively towards the local inhabitants for their parties’ objectives or for their own personal gains.  However, the same COI also suggested that the political scene in Nepal has changed over the past 10 years.  Although Nepal is not free from the common problems of corruption and governmental inefficiencies, the Board considered that it was not the same as a meltdown of internal security or unavailability of reasonable state protection.  On the contrary, the Board found that there are freedom of movement and social welfare assistance within Nepal.

17.  On the Applicant’s evidence, nothing happened to her during her stay in Kathmandu.  The Board found her complaint about her sister being blackmailed by an unknown person over the phone lacking in detail.  It found her fear was self-induced and not well-founded.  It also found that the Applicant was not an individual targeted for personal persecution by any of the political parties, as no member from any political party had ever approached her or her family when she was living in Kathmandu.  Her life in Kathmandu was difficult due to economic, rather than political, reasons.

18.  As for Persecution Risk ground, the Board found that the supporters could not be considered as state actors and that her dispute with them had nothing to do with race, religion, nationality, membership of a particular social group or political opinion and therefore did not fall within the 1951 Convention relating to the status of Refugees and its 1967 Protocol as to entitle her to protection under this ground.  In any event, it found under the current political situation state protection would be available to prevent this risk of harm.

19.  As for BOR 3 Risk ground, the Board did not accept that the Applicant had suffered injury of the requisite level of severity as to qualify as torture, cruel, inhuman, degrading treatment or punishment as to suggest she would be at risk of such harm if refouled.

20.  As for Torture Risk ground, the Board found that there was no involvement by any public official or person acting in an official capacity in the ill-treatment of the Applicant.  It was also not her case that there was any acquiescence by the state in the supporters inflicting ill-treatment on her nor was there any consistent pattern of gross, flagrant or mass violation of human rights.  The Board found the claimed ill-treatment did not meet the definition of “torture” under section 37U(1) of the Immigration Ordinance as to entitle her to protection.

21.  The Board also found that as an able-bodied person, the Applicant could safely relocate to Kathmandu to avoid the perceived risks from the supporters, which were localised within her home village.

22.  Applying the law applicable to non-refoulement protection to the above findings, the Board found the Applicant is not entitled to protection under any of three applicable grounds under the USM.  Accordingly, the Board dismissed her appeal and affirmed the decision in the Director’s 2015 Notice.

 Legal principles applicable to judicial review

23.  The role of the court in judicial review is not to re-assess the non-refoulement claims afresh.  The primary decision-makers in a claim for non-refoulement are the Director and the Board.  They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration.

Grounds for judicial review

24.  The Applicant’s ground of judicial review as stated in the Form 86 is breach of procedural fairness in the following respects:

(1)  the Board had unlawfully fettered its discretion by refusing her appeal on the ground that she did not meet the requirement;

(2)  the Board acted in a procedurally unfair manner in dealing with her appeal;

(3)  the Board’s decision to refuse her appeal was unreasonable or irrational in the public law sense or is the result of procedural errors or unfairness; and

(4)  the Board failed to meet the greater care and duty owed to a self-represented claimant.

25.  In addition, under the heading of “Background of the Applicant”, she made the following complaints which may be regarded as grounds for judicial review:

(5)  she was not given a copy of the Decision nor was she informed of the Decision until she reported for recognizance to the Immigration Department in late January 2019;

(6)  she was not given an opportunity to keep forward her submissions in an oral hearing nor was she invited to make written submissions; and

(7)  the Board significantly relied on source of news which is not credible or officially recognized or is simply hearsay, or outdated;

Discussion

26.  Grounds (1) to (4) are lacking in particulars. The Applicant did not appear at the hearing and forwent her opportunity to perfect her grounds.  Nevertheless, this Court will consider these grounds in its overall scrutiny of the Decision.

27.  Under Ground (5), the Applicant complains that she was not given a copy of the Decision.  This is a bare assertion only.  Even accepting that she had not received a copy of the Decision, the papers show that a copy had been sent to her postal box on the date of the Decision.  There is no issue of procedural unfairness.

28.  Under Ground (6), she complains that she was only asked to write down grounds of her appeal but was not allowed to make submissions.  This ground is contradicted by the instructions in the NOA.  The fourth and fifth bullet points on page 1 of the NOA reads:

“It is important that you include ALL information you wish the Board/Adjudicator to consider in this Notice as you may not be allowed to submit further information subsequently unless with the permission of the Board/Adjudicator.

If you need more space to fill in your information, you should do so on additional sheet(s) of paper by indicating clearly the section to which the information refers.”

29.  By these instructions, the Applicant should understand that she is required to put in all information which she wished the Board to consider and to use additional sheets of paper to do so, if necessary.  The information is not limited to grounds of appeal and may include submissions.  There is no limitation as to the volume of information she may submit. 

30.  If this complaint includes a complaint about absence of an oral hearing, it should be noted that an oral hearing is not mandatory.  As is stated in the second bullet point on page 2 of the NOA, the Board may make a determination without a hearing having regard to the material before it and the nature of the issues raised.  The Decision is expressly stated to be a determination without a hearing pursuant to section 12 of Schedule 1A of the Immigration Ordinance and paragraph 15 of the Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme. 

31.  In Paragraph 64 of the Decision, the Board held:

“This decision is made on the assumption that the Applicant’s contentions are accepted in full. There is no unresolved issue which would have affected the present determination. There has been no deprivation of the Applicants’ chance of making worthwhile or effective representation. An oral hearing would not have enhanced her case and is considered unnecessary.”

32.  Having examined the Decision, this Court agrees with the Board’s observation.  There is no unfairness in making the determination in the Decision without holding a hearing.

An overall scrutiny of the Decision

33.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, this Court is satisfied that the Board had correctly set out the law and key legal principles relating to the three applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness. The Board assessed the Applicant’s claim on the basis of her case as she asserted. It was on that basis that the Board found the Applicant’s feared ill-treatment is not well-founded.  Then, applying the law to the above finding of fact, the Board came to the conclusion that the Applicant was not entitled to non-refoulement protection under any of the three applicable grounds under the USM.  These are finding of facts which are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality. The Court could detect no error of law in the Decision.  The Decision does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  Basically, the Applicant failed to discharge her burden of proving her fears and risks.  The Decision is utterly without fault.  The proposed judicial review has no realistic prospect of success.

Conclusion

34.  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

Form CALL-1