RE PUNAM GHARTI MAGAR SINJALI

CACV 84/2019

[2019] HKCA 689

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 84 OF 2019

(ON APPEAL FROM HCAL NO. 1179 OF 2018)

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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

1.1  This is an appeal by the applicant against the decision of Deputy High Court Judge K.W. Lung given on 15 February 2019 in which he refused to grant leave to the applicant to apply for judicial review.

1.2  This appeal was scheduled to be heard on 18 June 2019.  Despite the directions contained in the letter from the High Court to the applicant dated 12 March 2019, the applicant failed to lodge a skeleton argument by 21 May 2019.  Accordingly, the hearing was vacated and we will deal with this appeal on paper.

2)  Factual background

2.1  The applicant is a national of Nepal. She entered Hong Kong on 3 March 2014 as a visitor, but she overstayed.  On 15 October 2016, she was arrested by the Police.  She raised a non-refoulement claim on 15 November 2016.

2.2  The basis of the applicant’s claim is that she would be harmed or killed by Ajay Shrestha’s (‘Ajay’) family and their debt collectors from the Rastriya Banijya Bank of Nepal (‘the Bank’).  She claimed that her father and daughter were murdered.

2.3  The background facts have been summarized in the decision of the Judge at [2] and [3].

3)  The Director’s Decision

3.  The Director decided against the applicant’s torture claim on 25 August 2017.  The decision covered Bill of Rights Article 3 (torture/inhuman treatment) risk (‘BOR 3’), Bill of Rights Article 2 (risk of life) risk (‘BOR 2’), as well as other statutory and convention rights against torture and persecution (‘the Director’s Decision’).

4)  The Board’s Decision

4.1  The applicant appealed against the Director’s Decision to the Board.  After a hearing held on 12 April 2018, the Board dismissed the applicant’s appeal on 30 April 2018 (‘the Board’s Decision’).

4.2  The Board found the applicant’s claims regarding violence from her alleged debt collectors not credible.  The applicant was unable to establish that there are substantial grounds that she would face real risk of ill‑treatment if refouled.  The country of origin information for Nepal does not show that she would be subjected to rape or murder as a woman in Nepal.  Further the applicant had not provided evidence as to the death of her father and daughter.

5)  Decision of the Judge

5.  The Judge held that many of the applicant’s grounds for leave for judicial review were bare allegations.  The Board was also entitled to ask the applicant for evidence to prove her case, the burden of proof being on her.  He held that the evaluation of evidence was also essentially a matter for the Director and/or the Board.

6)  Grounds of appeal

6.1  The applicant in the notice of appeal generally stated that the gravity of her circumstances has not been weighed, and that she should be given the chance to plead her case properly.

6.2  The applicant in her supporting affirmation gave bare assertions that there are good grounds of appeal.  She also complained that the Judge failed to consider her arguments but she did not give any further explanation.  

7)  Our view

7.1  We are of the view that the applicant’s appeal is without merits.  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 of 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].  None of these errors exists in this case.

7.2  Accordingly, the appeal is dismissed.