SHRESTHA SUBASH v. TORTURE CLAIMS APPEAL BOARD /NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1070/2017

[2018] HKCFI 2639

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1070 of 2017

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;

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The applicant is a 26-year-old national of Nepal who arrived in Hong Kong on 21 November 2015 but when he was refused entry by the Immigration Department he lodged a non-refoulement claim on the basis that if he returned to Nepal he would be harmed or killed by supporters of rival political party Nepal Communist Party (United Marxist Leninist) (“UML”).  He was initially detained at the Castle Peak Bay Immigration Centre (“CIC”) but was later released on recognizance pending the determination of his claim. 

2.  The applicant was born and raised in Village Purkatdaha, Guimi, Nepal where his parents and siblings still live.  In 2008 he became a member of the student wing of the Nepal Congress Party (“CP”) and regularly attended their meetings and rallies.  After leaving school he moved to Pokhara to look for work there and continued to participate in CP activities.

3.  One day in September 2015 while attending a CP rally with his fellow supporters, an argument broke out between them and some UML supporters which led to a minor scuffle but with no serious consequences.

4.  However, a few days after UML won the general election and became the ruling party, the applicant and one of his friends were confronted by some UML supporters who kicked them and threatened the applicant that if he wanted to remain in Pokhara he should leave his party CP.

5.  After the incident the applicant made a report to the police but when there was no follow-up investigation, he felt it was no longer safe to remain in Nepal and therefore left with his friend in November 2015 for India where they stayed in New Delhi for about three weeks during which they did not seek protection from the Indian authority, and on 21 November 2015 they arrived in Hong Kong, and when they were refused entry the applicant lodged his non-refoulement claim, for which he subsequently completed a Non-refoulement Claim Form (“NCF”) on 18 December 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.  By a Notice of Decision dated 25 February 2016 the Director of Immigration (“the Director”) rejected the applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights (“HKBOR”) (“BOR 3 risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“persecution risk”).

7.  In his decision the Director took into account of all the relevant circumstances of the applicant’s claim and assessed the level of risk of harm upon his return to Nepal as low due to the low intensity and frequency of past ill-treatment from the UML supporters, that there is no reliable evidence of any real intention of the UML supporters to seriously harm or kill him, that reliable and objective Country of Origin Information (“COI”) show that whilst an UML candidate won the election in 2015, CP has remained the biggest party in the Nepalese Constituent Assembly which indicates that UML is not as influential as the applicant feared, that in the absence of any official involvement in those threats of the UML supporters that state or police protection would be available to the applicant if resorted to, and that COI also show that reasonable internal relocation alternatives are available in Nepal with a large population of 31 million people spread across a vast territory of more than 147,000 square kilometers that it would not be unduly harsh for the applicant as an able-bodied young man to move to other areas away from his home district where it would be difficult if not impossible for those UML supporters to locate him.

8.  By a Notice of Further Decision dated 25 November 2016 the Director again rejected the applicant’s claim in the absence of any response from him to an earlier invitation to submit additional facts which may relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”).

9.  On 30 December 2016 the applicant filed a notice of appeal to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director of 25 February 2016 which means that he was late by more than 9 months as section 37ZS of Part VIIC of the Immigration Ordinance, Cap 115 requires that the notice of appeal to the Board must be filed within 14 days after notice of the decision is given to the applicant unless late filing is allowed by the Board under section 37ZT(3) of the Ordinance.

10.  On 6 December 2017 the Board refused the applicant’s late filing of his notice of appeal pursuant to section 37ZT(4) of the Ordinance, which it found to have been of extraordinary delay after rejecting his reasons due to mental stress caused by his detention at the CIC and by his decision to first make an application under the Hong Kong Bill of Rights as balanced against the needs to enforce compliance with rules and for the application to be conducted efficiently and at proportionate cost.

11.  On 13 December 2017 the applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in it he put forward the following grounds for his intended challenge:

(1)  that the Board erred in failing to maintain high standard of fairness by not including an oral hearing for his appeal so that he could put forward his case where his life and limbs are in jeopardy and at risk of being tortured;

(2)  that the Board erred in approaching the matter by simply trying to see whether he could find fault with the Director’s decision and for not requiring the Director to attend the appeal hearing to answer questions;

(3)  that the Board failed to consider the relevant COI in considering his appeal;

(4)  that the Board failed to maintain the minimum standards of procedural fairness in its decision-making process; and

(5)  that the Board failed to take into consideration that the applicant was not legally represented and has insufficient legal knowledge and failed to inform him that he could complain.   

12.  The complaints of the applicant under grounds (1), (4) and (5) can be considered together given the Board’s decision to refuse his late filing of the notice of appeal.  First it is noted that there is no dispute that the applicant did receive that Director’s decision of 25 February 2016 through his lawyer from DLS, nor is it disputed by him of having been late with his notice of appeal, for which section 37ZT of the Ordinance applies as follows:

“ 37ZT. Late filing of notice of appeal

(1) If a notice of appeal is filed after the expiry of the 14-day period referred to in section 37ZS(1), it must include an application for late filing of the notice, which—

(a) must include a statement of the reasons for failing to file the notice within that period; and

(b) must be accompanied by any documentary evidence relied on in support of the reasons referred to in paragraph (a).

(2) The Appeal Board must decide, as a preliminary decision without a hearing, whether the Board allows the late filing of the notice of appeal under subsection (3), and in doing so, the Board may only take account of—

(a) the statement of reasons stated in the application for late filing of the notice of appeal and any accompanying documentary evidence relied on in support of those reasons; and

(b) any other relevant matters of fact within the knowledge of the Board.

(3) If the Appeal Board is satisfied that by reason of special circumstances, it would be unjust not to allow the late filing of the notice of appeal, the Board may allow the late filing of the notice and must, by written notice, inform the person filing the notice of the Board’s decision.

(4) If the Appeal Board does not allow the late filing of the notice of appeal, the Board must, by written notice, inform the person filing the notice that the Board refuses the notice as it is filed out of time.”    

13.  Hence it is clear that under subsection (2) the Board must first decide as a preliminary decision without a hearing (my emphasis) whether to allow the late filing of the applicant’s notice of appeal, and to do so the Board may only take account of the statement of reasons provided by the applicant in section 5 of his notice of appeal and referred to in paragraph 14 of the Board’s decision as follows:

“ At the time of the decision made on 25 February 2016, I was in the custody of CIC (Castle Peak Bay Immigration Centre). When I was in the custody, I was in immense mental stress; I was in custody for about 5 months and was suffering from mental stress. Thus, I did not make an appeal to the Appeal Board, instead applied for examination under the HK Bill of Rights Act (sic.) 2 and I was released from custody after some time. I apologize for making an appeal late. Please view my appeal.”

14.  In the decision the Board explained its reasons for refusing the applicant’s late filing as follows:

“ 17. The law provides that it is conclusively presumed that the Appellant had been served with the Notice of Decision as it was delivered to the Duty Lawyer Service.

18. Since the Notice of Decision was delivered to the Appellant care of the Duty Lawyer Office, the Duty lawyer would have been under a duty to explain the contents of that document to the Appellant. The Duty Lawyer would also have been under a duty to explain the procedure of lodging an appeal against the Notice of Decision.

19. The Appellant’s explanation for late filing of his application is that he was under stress.  While sympathetic to that explanation the Appellant gives no account of the cause of his stress and provided no medical evidence to support that explanation.  The Board notes that the Appellant’s stress must have been very severe so as to prevent him from lodging an appeal but also notes that he says he lodged an application under the Hong Kong Bill of Rights. This discrepancy is not explained.”   

15.  Pausing here, while it may not be entirely correct for the Board to say that the applicant gave no account of the cause of his stress, as he clearly referred to being under custody in CIC for five months which must for him be the cause of his mental stress, the Board was correct to note that it was unsupported by any medical or other documentary evidence as required by subsection (1)(b) of section 37ZT, and that there was the discrepancy of him being able at the same time to lodge another application which was also not explained by the applicant.

16.  Further, by the applicant’s own account of having been detained at CIC for five months, which according to the Director’s decision began from 22 November 2015 after he was refused entry upon arrival in Hong Kong when he was then sent to CIC, hence five months in custody there would take him to end of April 2016 when he would have been released from custody when he could have filed his notice of appeal which would mean a much shorter delay, yet he did not do so for a further seven months until 30 December 2016, a delay which the Board was in my judgment fully entitled to find extraordinary in the circumstances.

17.  The Board then proceeded to arrive at it conclusion as follows:

“ 20. The Board has evaluated all the circumstances of this application in accordance with the applicable legal provisions, especially section 37ZV(3) of the Ordinance, bearing in mind the principles stated in SSHD v Begum. Those principles are that there is a need to enforce compliance with rules as set out in the Ordinance; and the need for this type of application to be conducted efficiently and at proportionate cost.

21.     The Board notes that the Appellant’s delay in lodging his appeal extends to about nine months.  This is an extraordinary delay for which an allegation of stress—unsupported by medical evidence—is completely insufficient.  The Board is not satisfied that any special circumstances pursuant to section 37ZT(3) of the Ordinance have been shown.”

18.  Given this extraordinary delay on the part of the applicant, and for his failure to provide any medical or documentary evidence in support of his alleged medical condition for which again he had had ample time and opportunity to do so, and with the needs to enforce compliance with rules and for this type of application to proceed efficiently and at proportionate cost as emphasized by the English Court of Appeal in The Secretary of State for the Home Department v Begum [2016] EWCA Civ 122, the Board was in my judgment correct to find no special circumstances existed in the applicant’s case to allow the late filing of his notice of appeal, and I do not find any merit or basis in any of those complaints of the applicant.    

19.  In the premises and for the reasons given, I also do not find the rest of the applicant’s grounds to be of any relevance or assistance to his intended application, and having proceeded to consider also the decision of the Director with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in it nor any failure on his part to apply high standards of fairness in his consideration and assessment of the applicant’s claim.

20.  For these reasons I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and I accordingly refuse his leave application.

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