RE SERPUJA PUN ISHWORI

CACV 30/2024, [2024] HKCA 1024

On Appeal From [2024] HKCFI 267

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 30 OF 2024

(ON APPEAL FROM HCAL NO. 1383 OF 2019)

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J U D G M E N T

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Hon Cheung JA (giving the Judgment of the Court)  :

1)  The appeal

1.  This is an appeal by the applicant against the decision of Deputy High Court Judge KW Lung of 19 January 2024 in which he refused to grant leave to her to apply for judicial review.

2.  The applicant consented on 23 January 2024 for the appeal to be determined on the paper without an oral hearing.

2)  Background

3.  The applicant is a national of Nepal.  She last entered Hong Kong as a visitor in July 2014.  The applicant overstayed.  She lodged a non-refoulement claim on 24 June 2016[1].  

4.  The basis of the applicant’s claim is that she would be harmed or killed by her uncle as he threatened to sell her to work as a prostitute in India[2].

5.  The background facts have been summarized in the decision of the Judge at [4].

3)  The Director’s Decision

6.  The Director of Immigration (‘the Director’)  decided against the applicant’s non-refoulement claim on 28 August 2018.  The decision covered Bill of Rights Article 3 (torture/inhuman treatment)  risk (‘BOR 3’), Bill of Rights Article 2 (right to life)  risk (‘BOR 2’), as well as other statutory and convention rights against torture and persecution[3] (‘the Director’s Decision’).

4)  The Board’s Decision

7.  The applicant appealed against the Director’s Decision to the Torture Claims Appeal Board (‘the Board’).  After a hearing held on 18 April 2019, the Board dismissed the applicant’s appeal on 10 May 2019 (‘the Board’s Decision’).

8.  The Board’s finding is summarized in the decision of the Judge at [7] to [11].

5)  Decision of the Judge

9.  The applicant filed her Form 86 and supporting affirmation on 22 May 2019[4].

10.  The Judge held that the grounds relied on by the applicant are bare assertions.  Further, the applicant did not inform the Board that she did not have enough time to prepare her case.  In addition, it is trite that there is no absolute right to free legal representation at all times of the proceedings, and that she was provided with interpretation service[5].

6)  Grounds of appeal

11.  The applicant in the notice of appeal stated the following :

‘ The High Court did not consider my points of the error of adjudicator. Adjudicator did many wrong but High Court did not grant my leave.’

12.  In the applicant’s written submission, she stated the following in summary :

(1)  The applicant lodged non-refoulement claim on the basis that if she returned she would be killed by Uncle Raj;

(2)  The Adjudicator made many error;

(3)  The High Court did not consider her argument;

(4)  The case officer did not believe her despite submission of certain documents which she brought from her home country; and

(5)  The applicant could find error in the Board decision but the High Court could not.

7)  Our view

13.  We are of the view that the applicant’s appeal is without merits.  The applicant provided no reasonably arguable grounds for judicial review.  An appeal against refusal of leave for judicial review is not an occasion for the applicant to regurgitate arguments already advanced.  The Court of Appeal would only reverse the decision of the Judge if it could be demonstrated that there were errors in law, that the Judge failed to take into account relevant matters, or the decision was otherwise plainly wrong : see United Muslim Association of Hong Kong v Yusuf Yu [2018] HKCA 451 at [38] and [39].

14.  It is thus incumbent on the applicant to point out with sufficient particularity the errors allegedly committed by the Deputy Judge in assessing the Board’s Decision.  None of the arguments raised by the applicant shows the Deputy Judge has made any error of law.

15.  We see no basis to disturb the Deputy Judge’s decision.  Accordingly, the appeal is dismissed.

16.  On 13 September 2024, the Court was notified by the Director that the applicant has been removed from Hong Kong.  We will send a copy of this judgment and the sealed order to the Director and request that he uses his best endeavour to forward them to the applicant.