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

CACV 358/2024, [2025] HKCA 50

On Appeal From [2024] HKCFI 2144

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 358 OF 2024

(ON APPEAL FROM HCAL NO 372 OF 2019)

________________________

_____________________

_________________

J U D G M E N T

_________________

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

1.  This is the Applicant’s appeal against the order of Deputy High Court Judge To (“the Judge”) dated 28 August 2024 (“the Order”) refusing to grant leave to the Applicant to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 12 May 2017, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 21 January 2015.

BACKGROUND

2.  The Applicant is a national of Nepal. She claimed that she sneaked into Hong Kong illegally on 12 May 2009. She was arrested by the police on the same day. On 16 May 2009, she lodged a torture claim, which was later taken as a non-refoulement claim after the commencement of the unified screening mechanism on 3 March 2014. On 13 April 2015, she married a Hong Kong Nepalese man.

3.  The Applicant’s claim was made on the basis that, if refouled, her life would be in danger because of persecution by different political parties in her home village. Details of the Applicant’s claim have been summarised by the Judge at §§7-8 and 10-15 of the CALL-1 Form.

4.  By a Notice of Decision dated 21 January 2015 (“the Director’s Decision”), the Director dismissed the Applicant’s non-refoulement claim on the following grounds: risk of torture[1], BOR 3 risk[2], and persecution risk[3].

5.  By a Notice of Further Decision dated 26 May 2017 (“the Director’s Further Decision”), the Director dismissed the Applicant’s non-refoulement claim based on BOR 2 risk[4].

6.  The Applicant appealed the Director’s Decision to the Board, but did not lodge any appeal or petition against the Director’s Further Decision. On 12 May 2017, the Board dismissed the Applicant’s appeal, and confirmed the Director’s Decision (“the Board’s Decision”). The Board’s reasons for its decision were summarised by the Judge at §§16-22 of the CALL-1 Form, as follows:

“[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 [Decision].”

THE JUDGE’S DECISION

7.  On 11 February 2019, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision. In the Form 86, the Applicant raised various complaints which the Judge summarised at §§24-25 of the CALL-1 Form, as follows:

“(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;

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

…

(5) [the Applicant] 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) [the Applicant] 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[.]”

8.  On 28 August 2024, the Judge refused to extend time for the Applicant to apply for leave to apply for judicial review of the Board’s Decision, and dismissed her leave application.

9.  The Judge considered that the Applicant’s delay of almost 18 months in making the leave application was very serious, and an extension of time was required for her to apply for leave to apply for judicial review. Having considered the Applicant’s explanation for the delay, the Judge was not satisfied that she had provide any reasonable explanation for her serious delay. His reasons for this view were set out at §§3-6 of Form CALL-1:

“[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[5], 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 [Board’s Decision] until she reported for recognizance to the Immigration Department in late January 2019 when she was informed that the Board had issued the [Board’s 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…”

10.  In any event, the Judge proceeded to consider the merits of the Applicant’s intended judicial review and refused to grant leave to apply for judicial review on the merits, for the following reasons:

“[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 [Board’s Decision].

[27] Under Ground (5), the Applicant complains that she was not given a copy of the [Board’s Decision]. This is a bare assertion only. Even accepting that she had not received a copy of the [Board’s Decision], the papers show that a copy had been sent to her postal box on the date of the [Board’s 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 [Board’s 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 [Board’s 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 [Board’s Decision]

[33] Having rigorously examined the [Board’s 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 [Board’s Decision]. The [Board’s 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 [Board’s Decision] is utterly without fault. The proposed judicial review has no realistic prospect of success.”

THIS APPEAL

11.  In her Notice of Appeal filed on 5 September 2024, the Applicant stated the following grounds of appeal:

“[The Applicant] will face hardship if [she] is to return back to his home country and that the Torture Claims Appeal Board has significantly relied on the source of news which is not officially recognized, or it is simply hearsay. They have also relied on some cases which are outdated considering the dramatic changes. The lack of credible source of information has resulted in them making groundless speculations.” [sic]

12.  In her 4-page written submissions lodged on 25 October 2024, the Applicant made some generic submissions on general principles of law relating to the high standards of fairness required in determining non-refoulement claims, but failed to explain how they are applicable to her case.

13.  At the hearing of the present appeal, the Applicant said that she had been told by the Immigration Department that her case had come to an end. She also informed the Court that she was leaving Hong Kong, and was going to file divorce proceedings against her husband.

DISCUSSION

14.  The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524, at §14. In particular, in an appeal against refusal of leave to apply for judicial review in a non-refoulement case, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant. If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed. The Court of Appeal’s role is not to examine the Board or Director’s decision afresh as if it was a fresh application for judicial review (see Nupur Mst, at §14(6)).

15.  Further, the assessment of evidence, COI, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director. The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022. No such error of law or procedural unfairness or irrationality in the decision of the Board is shown in the present case.

16.  The Applicant has failed to identify or show any error in the Judge’s decision of 28 August 2024, and has failed to raise any viable ground of appeal against the Order. The Judge adopted the correct approach in considering whether to grant an extension of time for the Applicant to apply for leave to apply for judicial review. We are satisfied that the Judge was right to refuse to grant an extension of time to the Applicant for making the leave application, and to dismiss the leave application because of (i) the Applicant’s substantial delay coupled with the absence of any reasonable explanation for the delay, and (ii) the lack of merits of her intended judicial review. We have considered the Judge’s decision carefully and are unable to see any reasonable ground of appeal against the decision.

17.  The Applicant’s appeal against the Order has no merit and is dismissed.