GURUNG INDRA KUMAR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL151/2018

[2019] HKCFI 1397

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 151 of 2018

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s Decision (Ord. 53 r. 3)

Following:

	consideration of documents only
	consideration of documents and oral submission by the Applicant in open court

(1)  Extension of time for application for leave to apply for judicial review of the decision of Torture Claims Appeal Board dated 9 June 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, he 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;

(5)  Liberty to apply.

Observations for the Applicant

Background

1.  The Applicant is a national of Nepal.  He is now aged 26 (DOB: 17 November 1992).

2.  The Applicant claimed he would be killed by members of the Unified Communist Party of Nepal (“UCPN, also known as the Maoist Party”).

3.  In 2009 when the Applicant was a student at the age of 17, several UCPN members asked him to join their party. The Applicant refused. Those people then left. The Applicant did not make any report to the police. He thought the police could not provide him long-term protection.

4.  In early 2011, two strangers came. They asked the Applicant to join UCPN. They demanded the Applicant to vote and work for UCPN. The Applicant refused. The two men then told the Applicant to see what would happen. The Applicant regarded that as a menace. Again, he did not complain to the police.

5.  In late 2012, six to seven UCPN people confronted the Applicant. They demanded the Applicant to vote and work for their party. The Applicant sensed danger. He falsely replied that he would join UCPN later. The men said they would kill him if he failed to join them. They then left.

6.  Four to five months later, the Applicant moved to live elsewhere to avoid UCPN harassment. He planned to come to Hong Kong for asylum.

7.  On 30 January 2014, the Applicant came to Hong Kong as visitor. He went to China on 5 February 2014 and returned to Hong Kong on the same day. He overstayed here after his visa expired on 12 February 2014. He was arrested by the police four months later on 23 June 2014. He raised a non-refoulement claim on 25 June 2014.

8.  The Applicant learnt from his father in Nepal that his enemies were still looking for him.

9.  The Applicant had not reported any of the incidents to the police in Nepal because he did not think the police could offer him long-term protection. He also thought internal relocation was not feasible because UCPN was powerful and its members could locate him in the country.

10.  In the ensuing two‑tier screening process here, the Director of Immigration (“the Director”) and the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“TCAB/NCPO” or simply “the Board”) respectively refused the Applicant’s claim with respect to all the four applicable grounds: (i) torture risk[1], (ii) risk of persecution[2],  (iii) risk of torture or cruel, inhuman or degrading treatment or punishment (BOR3 risk)[3] and (iv) risk of violation of the right to life (BOR2 risk)[4].

11.  On 2 February 2018, the Applicant applied for leave for judicial review.

Timeline

12.  Things happened in this order: –

2014-2-5	The Applicant last entered Hong Kong as visitor. He was allowed to stay until 12 February 2014.
2014-2-13	The Applicant began overstaying in Hong Kong.
2014-6-23	The Applicant was arrested by the police.
2014-6-25	The Applicant lodged a non-refoulement claim.
2016-4-15	The Director refused the Applicant’s claim with respect to these three applicable grounds: (i) torture risk, (ii) persecution risk and (iii) BOR3 risk.  [“the Director’s decision”]
2017-3-10	The Director invited the Applicant to submit additional facts for the consideration of the fourth applicable ground: BOR2 risk.
2017-3-24	The Applicant failed to submit additional facts by the deadline or thereafter.
2017-3-28	The Director refused the Applicant’s claim with respect to the fourth applicable ground: BOR2 risk. [“the Director’s further decision”]
2017-4-18	The Applicant appeared before the Board for appeal.
2017-6-9	The Board refused the Applicant’s appeal with respect to all the four applicable grounds.  [“the Board’s decision”]
2018-2-2	The Applicant applied for leave for judicial review.

Respondent/Interested party

13.  The Unified Screening Mechanism is a two-tier process.  The Director screens an applicant’s non-refoulement claim first; the applicant may appeal to the Board which deals with his/her case on a rehearing basis.

14.  In Re Moshsin Ali, the Court of Appeal states that “the decision of the immigration officer is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the board is pursued by a claimant.”[5]

15.  In Form 86 (the notice of application for leave to apply for judicial review), the Applicant named the Board as respondent and the Director as interested party.  Thus, the Board is the putative respondent; the Director is the putative interested party.

The Director's decision

16.  In his decision dated 15 April 2016, the Director did not accept the Applicant faced any torture risk, persecution risk or BOR3 risk. He also considered reasonable state protection and internal relocation were available to the Applicant in any event. The Director refused the Applicant's claim with respect to those three applicable grounds.

17.  On 28 March 2017, the Director refused the Applicant’s claim with respect to the fourth applicable ground: BOR2 risk.

The Board's decision

18.  The Applicant appealed to the Board. The Adjudicator interviewed the Applicant on 18 April 2017.

19.  The Adjudicator noted the Applicant was only a student. He was no important character to be a target of UCPN. The UCPN people had never harmed the Applicant or his family. The alleged threats were merely verbal. Nothing sinister happened before the Applicant left Nepal in early 2014. The Applicant said he did not complain to the Nepal police because they could not offer him protection. The Adjudicator did not accept such explanation. The Applicant agreed with the Adjudicator that it was only his speculation that the police could not help him. He also agreed it was his speculation that the UPCN people would kill him.

20.  The Adjudicator considered relevant country-of-origin information ("COI") and concluded reasonable state protection and internal relocation were available to the Applicant.

21.  The Adjudicator did not accept the Applicant faced any torture risk, persecution risk, BOR2 risk or BOR3 risk. On 9 June 2017, the Adjudicator refused the Applicant’s appeal with respect to all the four applicable grounds.

Grounds of judicial review

22.  In his affirmation, the Applicant complained the Adjudicator unlawfully fettered her discretion; acted in a procedurally unfair manner; rendered unreasonable or irrational decision; failed to meet the greater care and duty owed to a self-represented claimant.

23.  The Applicant complained there was no legal representation for his appeal to the Board. He also said there was a lack of language assistance. He had no means to find out if the interpreter had been translating the basis of his claim properly in the non-refoulement claim form (“NCF”).

24.  The Applicant said the interpreter in the appeal hearing did not explain to him that the Director had also reached a decision on BOR2 risk and that it was part of the subject matter on appeal. He did not know he could appeal against the Director's further decision. He accused the Director failed to provide proper explanation for his decision on BOR2 risk. The Applicant said he had not received the Director’s letter dated 10 March 2017 (which invited the Applicant to submit additional facts for the Director’s consideration of BOR2 risk).

25.  The Applicant filed his application for leave for judicial review on 2 February 2018, almost eight months after the Adjudicator had given her decision on 9 June 2017. The Applicant said in his affirmation that he did not receive the Adjudicator’s decision. He was only informed of the situation by his case officer ‘last week’ (before his affirmation dated 2 February 2018). The Applicant said he collected the decision from the Board only one day before 2 February 2018. Then he applied for judicial review.[6]

26.  The Applicant lastly complained the Director was excused from attending the Board hearing.

Court hearing

27.  The hearing took place on 30 August 2018.  The Applicant was in person.  A Nepali interpreter provided service in court.

28.  The Applicant said a friend helped him to prepare Form 86 and the affirmation. He confirmed all the grounds of judicial review were in the affirmation. He also confirmed he had submitted all of his case to the Director and the Adjudicator for their consideration of his non-refoulement claim.

29.  In court, the Applicant said he had been living at Parkes Street since December 2014. He did not receive the Board’s decision at that address but he got one from the Immigration Department later. He did not do anything until a friend advised him he could file judicial review. That was about one and half months before he took out the current application on 2 February 2018.

Discussion

30.  Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.

31.  A non-refoulement claim involves ‘life and limb’; any decision will bear significant consequences on an applicant.  Therefore, high standards of fairness must be achieved.  The court should look at an applicant’s case under ‘rigorous examination and anxious scrutiny’.[7] Nevertheless, it is said in Re Islam Rafiqul: –

“The role of the Court in a judicial review is not to provide a further avenue of appeal. The primary decision-makers are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of issue at hand, the Court should not usurp the role of the Board. Assessment of evidence and COI materials and 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.” [8]

Late application for leave for judicial review

32.  Order 53 rule 3(1) of the Rules of the High Court reads: –

(1)  No application for judicial review shall be made unless the leave of the Court has been obtained in accordance with this rule.

33.  Order 53 rule 4(1) and (2) of the Rules of the High Court read: –     

(1)  An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made.

(2)  Where the relief sought is an order of certiorari in respect of any judgment, order, conviction or other proceeding, the date when grounds for the application first arose shall be taken to be the date of that judgment, order, conviction or proceeding.

34.  It is clear from these provisions that no application can be made after the three-month period unless the Court considers there is good reason for extending time. The Applicant must provide good reason for the Court to approve extension of time. It is a pre-requisite in late application for leave for judicial review.[9]  If the court is not satisfied there is a good reason for extending time, then no application for judicial review can be made in accordance with Rule 4(1).  In that event, the Court should not proceed to consider if leave should be granted or refused on other grounds.[10]

35.  In the present case, the Board’s decision was issued on 9 June 2017. The Applicant only applied for leave for judicial review on 2 February 2018. Excluding the 3-month grace period for filing, he was almost 5 months late.

36.  The Applicant said he did not get the Director’s letter dated 10 March 2017 (which invited the Applicant to submit additional facts for the Director’s consideration of BOR2 risk). Nor did he receive the Board's decision in June 2017. In court, the Applicant said he had been living in Flat 3A, 3/F, No 119 Parkes Street, Yau Ma Tei since December 2014. However, the Director's further decision dated 28 March 2017 showed his reported address was Room C, 1/F, 71 Waterloo Road, Yau Ma Tei. The Applicant could not complain if he failed to receive anything because he lived at a different address from the one he had reported to the authorities.

37.  In court, the Applicant said he could not remember clearly when he got the Board's decision after being alerted by the Immigration Department of the result. He said he did not know about judicial review until one and a half months before he finally took out the current application on 2 February 2018. That was inconsistent with his saying in the affirmation that he was only informed of the situation by his case officer ‘last week’ (before his affirmation dated 2 February 2018) and he collected the decision one day before 2 February 2018.

38.  The Applicant failed to give any truthful and good reason for his late application for leave for judicial review.

39.  The Applicant was almost 5 months late in the current application. There is no good reason for the delay, which was undue and substantial. The prejudice that would be caused to the putative respondent was not insignificant. The current application for leave for judicial review involved no issue of general importance and the Applicant's argument had no merits at all.

40.  The Applicant complained there was no legal representation for his appeal to the Board. He had been represented by the Duty Lawyer Service up to the Director's decision dated 15 April 2016.

41.  The Court of Appeal has repeatedly stated that an applicant of non-refoulement claim does not have an absolute right to free legal representation at all stages of the proceedings.[11] The Applicant failed to show how his case would be undermined or prejudiced by the lack of legal representation only in the later stages of the screening process.

42.  The Applicant raised his language problem. In the current application, a friend helped him to prepare Form 86 and the affirmation. Apparently, the Applicant could find someone to assist him with interpretation/translation and dealing with English documents at all material times. Furthermore, he was assisted by qualified interpreters while he was still represented by the Duty Lawyer Service and also during the screening process before the Director and the Adjudicator. The Applicant had much exaggerated his language problem.

43.  The Applicant said he had no means to find out if the interpreter had translated the basis of his claim properly in the non-refoulement claim form (“NCF”). The Applicant surely had sufficient language assistance to find out if there was anything wrong in his NCF. He could not point out any. His complaint was groundless.

44.  The Applicant said the interpreter in the appeal hearing did not explain to him that the Director had also reached a decision on BOR2 risk and that it was part of the subject matter on appeal. He did not know he could appeal against the Director's further decision. He accused the Director failed to provide proper explanation for his decision on BOR2 risk.

45.  The Applicant's complaint was inconsistent with his statement in para 21 of his affirmation, where he was able to cite para 6 of the Director's further decision on BOR2 risk.

46.  The Applicant complained the Director was excused from attending the Board hearing. He failed to show how the Director's absence would prejudice his appeal.

47.  I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. The Adjudicator had proper basis for her finding, conclusion and decisions which were not Wednesbury unreasonable. She made no errors of law and there was no procedural unfairness. The Adjudicator had engaged in joint endeavour with the Applicant in the screening process. The Applicant had been given reasonable and sufficient opportunities to state and elaborate his case. The Adjudicator was acquainted with the facts. She considered the Applicant's case carefully and applied the law correctly. The Adjudicator had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim.

Conclusion

48.  The current application for leave for judicial review is unjustifiably late. There are no circumstances that oblige the court to consider such late application. I refuse to grant the Applicant extension of time. His late application for leave for judicial review is therefore dismissed.

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