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HCAL 42/2018
[2019] HKCFI 1757
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 42 of 2018
BETWEEN
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Phagami Mangala Kumari |
Applicant |
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Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office |
Putative Respondent |
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Director of Immigration |
Putative Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following:
Order by Deputy High Court Judge Bruno Chan:
This second application by the applicant for leave to apply for judicial review of the Torture Claims Appeal Board’s decision made on 6 April 2017 is hereby struck out and dismissed.
Observations for the Applicant:
1. The applicant is a 37-year-old national of Nepal who arrived in Hong Kong on 11 January 2014 with permission to remain as a visitor up to 18 January 2014 when she did not depart and instead overstayed and was arrested by police on 26 January 2014. After she was referred to the Immigration Department for investigation, she raised a non-refoulement claim on the basis that if she returned to Nepal she would be harmed or killed by her abusive husband and/or by her creditor for failing to repay her loan. She was then released on recognizance pending the determination of her claim.
2. The applicant was born and raised in Village Rampata, District Myagdi, Dhaulagiri, Nepal. After leaving school she married her husband in a family arranged marriage and moved to reside in his home village in Sasbhara in the same district and raised their family of three children.
3. In about 2004 the applicant started a guesthouse business in Kathmandu but would run into frequent arguments with her husband over its management when her husband would become violent and abusive towards her by slapping and punching her during their arguments.
4. In 2010 the applicant borrowed a loan from a fellow villager for her guesthouse business, but when her business turned bad and when she was unable to repay her loan, she was threatened by her creditor with violence if she failed to repay her loan.
5. To avoid such threats from her creditor and the abuses from her husband, the applicant decided to leave Nepal and so in January 2014 she departed for Hong Kong where she subsequently overstayed and raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form on 9 March 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.
6. By a Notice of Decision dated 22 June 2015 the Director of Immigration (“the Director”) rejected the applicant’s claim on all then 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 all the relevant circumstances of the applicant’s claim and assessed the level of risk of harm from her husband or her creditor to the applicant upon her return to Nepal as low due to the low intensity and frequency of past ill-treatment from them, that her disputes with them were of private family and personal nature and without any official involvement that state or police protection would be available to the applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Nepal with a large population of 30 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 adult with work experience to move to other part of Nepal away from her home district in large cities such as Biratnagar or Butwal where it would be difficult if not impossible for her husband or creditor to locate her.
8. By a Notice of Further Decision dated 28 October 2016 the Director again rejected the applicant’s claim in the absence of any response from her to an earlier invitation to submit additional facts which may be 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. By then the applicant was already in the process of appealing to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, the notice of which was filed on 6 July 2015, and for which she attended an oral hearing on 15 November 2016 before the Board during which she gave evidence and answered questions put to her by the adjudicator for the Board. On 6 April 2017 her appeal was dismissed by the Board which agreed with the Director that with state/police protection and reasonable internal relocation alternatives in Nepal available to the applicant that there was no justification to afford her with non-refoulement protection in Hong Kong.
10. On 2 May 2017 the applicant filed her Form 86 under HCAL 173/2017 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds for her intended challenge:
(1) procedural unfairness in that the Board had unlawfully fettered its discretion in refusing her appeal on the grounds that they did not satisfy the requirement;
(2) procedural unfairness in that the adjudicator acted in a procedurally unfair manner in dealing with her appeal;
(3) procedural unfairness in that the Board’s decisions to refuse her appeal were unreasonable or irrational in the public law sense or are the result of procedural errors or unfairness;
(4) procedural unfairness in the Board’s failure to meet the greater care and duty owed to a self-represented claimant;
(5) procedurally unfairness in that the hearing bundle was provided to her late with the majority of the documents in English without translation and thereby giving her insufficient time to prepare for her appeal before the Board; and
(6) that the Board had significantly relied on source of news not officially recognized or were simply hearsay or outdated resulting in groundless speculations that it would be safe for her to return to her country of origin.
11. On 24 November 2017 her application was refused by Deputy High Court Judge Woodcock upon finding none of her grounds reasonably arguable, that there was no error of law or procedural unfairness or failure to apply high standards of fairness in the Board’s decision, and that there was no realistic prospect of success in her intended application.
12. The applicant did not lodge any appeal against that decision, but instead on 9 January 2018 filed another Form 86 for leave again to apply for judicial review of the Board’s decision in these proceedings now before me, and put forward essentially the same or similar grounds of procedural unfairness and failure to apply high standards of fairness for her second application, but all of which had already been found not reasonably arguable and with no prospect of success by the Court in her previous application.
13. Clearly this is a case in which the principle of res judicata applies that the applicant cannot be allowed to re-litigate, and that it is an abuse of process for her to bring a second judicial review in respect of the same decision of the Board after she failed to obtain leave from the Court in HCAL 173/2017, and also for failing to disclose to the Registry of the same when she filed her second Form 86 and issued her ex parte application in these proceedings, resulting in much judicial and public resources being wasted in processing these proceedings.
14. In the premises this second application for leave to apply for judicial review of the Board’s decision by the applicant is hereby struck out and dismissed.
Dated the 26th day of July 2019.
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(NG Ka-wing)
for Registrar, High Court |
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
Notes for the Applicant:
If leave has been granted, the Applicant or his solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant on 26 July 2019
Phagami Mangala Kumari
Applicant’s ref. no.:
Nil.
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 26 July 2019
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 1834/15/7/18/N203
Director of Immigration
Putative Interested Party’s ref. no.:
RBCZ 9000036/16
(Formerly RBCZ 1322/14)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
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