AMAGAIN SAPANA v. KEVIN EDWARD BALL, ESQ.

HCAL472/2018

[2018] HKCFI 2768

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 472 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 the Applicant being absent from court

(1)   Extension of time for application for leave to apply for judicial review of the decision of Torture Claims Appeal Board dated 16 March 2017 be refused; and

(2)   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, she 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; and

(5)   Liberty to apply.

Observations for the Applicant

Background

1.  The Applicant is a national of Nepal. She is now aged 37 (DOB: 26 June 1981). 

2.  The Applicant claimed she would be harmed or killed by her husband Prasad.

3.  The Applicant married Prasad in 1998. Their daughter was born in the following year.

4.  The Applicant said her husband began to be abusive in 2003 when it was diagnosed that their daughter had autism. Prasad blamed the Applicant and frequently abused her verbally as well as physically.

5.  In 2012, Prasad brought another woman to live in the house. He forced the Applicant to kill their daughter or he would kill them both. He abused both of them.

6.  In August 2013, Prasad hurt the Applicant and their daughter when he was drunk. The Applicant left home the next day to live with her parents.

7.  In January 2014, the Applicant went home to collect her belongings. She was attacked by the woman, who cohabited with Prasad. During the chaos, the Applicant injured the woman.

8.  The Applicant went back to her parents’ home. Fearing Prasad and the woman would come to look for her for revenge, the Applicant left for Kathmandu and placed her daughter in a home for the handicapped.

9.  The Applicant was told by her parents that Prasad and the woman had come to look for her several times. Prasad warned the Applicant’s parents that he would harm them if they could not get the Applicant back home. [The Applicant originally said Prada never harmed her parents. However, she later changed to say Prasad had beaten up her father.]

10.  The Applicant left Nepal for Hong Kong on 13 February 2014. She entered Hong Kong as visitor and was allowed to stay until 20 February 2014. However, she overstayed. The Applicant was arrested by the police on 13 July 2014. She filed a non-refoulement claim subsequently.

11.  The Applicant said Prasad made her depressed. She suffered mental stress and need to take medicine.

12.  The Applicant did not report the matter to the Nepal police because she thought they would not intervene in domestic matters.

13.  The Applicant said internal relocation was not viable as she had no means to do so. She said Prasad could easily find her because he had joined the Maoists, which had a wide network in Nepal.

14.  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) risk of torture,[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].

15.  On 22 March 2018, the Applicant applied for leave for judicial review.

Timeline

16.  Things happened in this order: –

2014-2-13	The Applicant left Nepal for Hong Kong. She entered Hong Kong as visitor and was allowed to stay until 20 February 2014.
2014-2-21	The Applicant began overstaying in Hong Kong.
2014-7-13	The Applicant was arrested by the police.
2014-7-18	The Applicant filed a non-refoulement claim.
2016-4-29	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”]
2017-1-6	The Director invited the Applicant to submit additional facts for the consideration of the fourth applicable ground: BOR2 risk.
2017-1-20	The Applicant failed to submit additional facts by the deadline or thereafter.
2017-1-24	The Director refused the Applicant’s claim with respect to the fourth applicable ground: BOR2 risk. [“the Director’s further decision”]
2017-2-13	The Applicant appeared before the Board for appeal.
2017-3-16	The Board refused the Applicant’s appeal with respect to all the four applicable grounds. [“the Board’s decision”]
2018-3-22	The Applicant applied for leave for judicial review.

Respondent/Interested party

17.  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.

18.  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]

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

The Director's decision

20.  The Director did not accept the Applicant faced any torture risk, persecution risk, BOR2 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 all the four applicable grounds.

The Board's decision

21.  The Applicant appealed to the Board. The Adjudicator interviewed the Applicant on 13 February 2017.

22.  The Adjudicator was prepared to accept the Applicant suffered domestic abuse by Prasad. However, he found the Applicant had not been inflicted with ill-treatment to a minimum level of severity. The complained situation was not on account of any Convention reasons (race, religion, nationality, membership of a particular social group or political opinion). It had nothing to do with the state. There was no question of state acquiescence. The Applicant had not reported the matter to the Nepal authorities. The Adjudicator noted the Applicant had not met Prasad for some years. He did not believe the Applicant's assertion that Prasad had joined the Maoists since that allegation was a last-minute addition. The Adjudicator also noted the Applicant did not seek non-refoulement protection as soon as she arrived in Hong Kong. She only made her claim after she was arrested by the police several months later. The Adjudicator was not satisfied the Applicant really came here for non-refoulement protection.

23.  The Adjudicator considered the Applicant only faced a low risk even on her own allegations. He found reasonable state protection and internal relocation were available to the Applicant in any event.

24.  The Adjudicator found the Applicant failed to prove any risk that warranted non-refoulement protection. On 16 March 2017, he refused the Applicant's appeal with respect to all the four applicable grounds:  torture risk, persecution risk, BOR2 risk and BOR3 risk.

Grounds of judicial review

25.  In Form 86 and her affirmation, the Applicant complained the Adjudicator unlawfully fettered his discretion; acted in a procedurally unfair manner; rendered unreasonable or irrational decisions; failed to meet the greater care and duty owed to a self-represented claimant.

26.  The Applicant accused the Adjudicator misdirected himself in law; failed to make sufficient inquiry; failed to consider updated or relevant country-of-origin information ("COI"); took into account outdated cases and irrelevant information; considered information not officially recognised or simply hearsay; cherry-picked information; failed to evaluate and make a finding of fact as to whether there existed in Nepal a consistent pattern of gross, flagrant or mass violations of human rights; failed to call for psychological or psychiatric reports; failed to properly consider the issues of state protection and state acquiescence; applied the wrong standard of proof.

27.  The Applicant complained there were failures by the assigned duty lawyer resulting in a lack of and/or insufficient legal representation.

28.  The Applicant complained she was given the appeal bundle only a few days before the Board hearing. As such, she did not have sufficient time to prepare for the appeal due to language problem and lack of legal representation. The Applicant said she was confused of what happened. She complained the Adjudicator failed to make appropriate arrangement.

29.  The Applicant complained the Director sent the letter asking for additional information to her old address. She said she had already informed the Director of the change many years ago. She thus missed the deadline for submission to the Director.

30.  The Applicant also accused the Director decided on BOR2 risk without screening and sent his further decision to her unused address.

Court hearing

31.  The hearing was scheduled for 11 July 2018. The Applicant was absent. The Applicant had left a mobile phone number on record. That number was called three times but no one answered.

32.  The court has not heard from the Applicant why she was absent on 11 July 2018.

Discussion

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

34.  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’.[6] 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.” [7]

Late application for leave for judicial review

35.  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.

36.  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. (L.N. 356 of 1988)

(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.

37.  It is clear from these provisions that no application can be made after the three-month period unless the Court considers that there is a good reason for extending time.  The Applicant must provide good reasons for the Court to give an extension of time. It is a pre-requisite in late application for leave for judicial review.[8]  If the court is not satisfied that 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.[9]

38.  In the present case, the Board’s decision was issued on 16 March 2017. The Applicant only applied for leave for judicial review 12 months later on 22 March 2018. Excluding the 3-month grace period for filing, she was nine months late.

39.  The Applicant failed to explain for her 9-month lateness in the affirmation or Form 86. She was also absent from the court to explain why she was so late in the current application.

40.  There was no evidence of any good reason for the delay. The delay was undue and substantial. The prejudice that would be caused to the putative respondent would not be insignificant. After all, discipline should be maintained in the area of public law. The Applicant's application for leave for judicial review involved no issue of general importance and her argument had no merits at all (see below).

41.  The Applicant complained the Director sent the letter asking for additional information to her old address, which she had already informed the Director of the change many years ago. She thus missed the deadline for submission to the Director. The Applicant failed to prove when she informed the Director of the change, if any. She also failed to prove she really had more information to submit to the Director.

42.  It was wrong for the Applicant to say the Director had not screened her non-refoulement claim with respect to BOR2 risk. The Director’s further decision dated 24 January 2017 was on BOR2 risk. It must be read in conjunction with the Director's decision dated 29 April 2016, where the Director had analysed the Applicant's case in details.

43.  The Applicant complained there were failures by the assigned duty lawyer. She gave no specifics.

44.  The Applicant mentioned she was not represented for appeal to the Board. She had been represented by the Duty Lawyer Service up to the Director's decision dated 29 April 2016.

45.  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.[10] The Applicant failed to show how her case would be undermined or prejudiced by the lack of legal representation only in the later stages of the screening process.

46.  The Applicant raised her language problem. In the current application, Form 86 and the Applicant's affirmation were prepared in English. Apparently, the Applicant could find someone to assist her with interpretation/translation and dealing with English documents at all material times. Furthermore, the Applicant was assisted by qualified interpreters when she 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 her language problem.

47.  The Applicant complained she received the appeal bundle only a few days before the Board hearing.

48.  According to para. 9.6 of the ‘Principles, Procedures and Practice Directions of the Torture Claims Appeal Board’[11] and para. 12.6 of the ‘Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme’[12], the Director shall send copies of the hearing bundle to the Board and to the Applicant no later than 5 working days prior to the date of the hearing.

49.  The Director stated in his letter dated 12 September 2018 that the appeal bundle was served on the Applicant on 27 January 2017. That was 17 calendar days (or 11 working days after excluding the Sundays and Lunar New Year holidays) prior to the Board hearing scheduled for 13 February 2017. Thus, the bundle was served on the Applicant in time.

50.  The appeal bundle would consist mostly of documents that had been seen or submitted by the Applicant during the first-tier screening of her claim. The Applicant's case was not difficult. There was no evidence to show the bundle was difficult or voluminous.

51.  A few days certainly were not a long period but could still be sufficient for reasonable and diligent preparation on the part of the Applicant. The Applicant failed to show she really needed more time to prepare for her appeal. She had not complained to the Adjudicator or asked for adjournment during the appeal hearing.

52.  The Applicant said she answered all the questions honestly in the Board hearing.[13] That would mean she knew well what was asked and how to answer. She was not confused.

53.  The Applicant failed to show there was any necessity for the Adjudicator to call for psychological or psychiatric reports or to make a finding of fact as to whether there existed in Nepal a consistent pattern of gross, flagrant or mass violations of human rights.

54.  The Adjudicator had considered the issues of state protection and state acquiescence. He found there was no question of state acquiescence. The Applicant had not reported the matter to the Nepal authorities. The Adjudicator also found reasonable state protection was available to the Applicant in any event. His finding was not Wednesbury unreasonable.

55.  There was no evidence that the Adjudicator cherry-picked information or took into account outdated cases/irrelevant information/information not officially recognised or simply hearsay.

56.  There was no evidence the Adjudicator misdirected himself in law or applied the wrong standard of proof.

57.  I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. The Adjudicator had proper basis for his finding, conclusion and decision which were not Wednesbury unreasonable. He 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 her case. The Adjudicator was acquainted with the facts of the case. He considered the Applicant’s claim carefully and applied the law correctly. The Adjudicator had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim. None of the Applicant’s complaints is substantiated.

Conclusion

58.  The Applicant's application for leave for judicial review is late. She fails to show any good reason to justify her lateness. There are no circumstances that oblige the court to consider her late application. I therefore dismiss her application for leave for judicial review.

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