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HCAL421/2018
[2019] HKCFI 971
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 421 of 2018
BETWEEN
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Jit Bahadur Lama |
Applicant |
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Adjudicator of Torture Claims Appeal Board /
Non-refoulement Claims Petition Office |
1st Putative Respondent |
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Director of Immigration |
2nd Putative Respondent |
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 Josiah Lam:
(1) Extension of time for application for leave to apply for judicial review of the decision of Torture Claims Appeal Board dated 13 May 2015 be refused; and
(2) Application for leave 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 39 (DOB: 27 March 1980).
2. The Applicant claimed he would be killed by the Maoists in his country.
3. The Applicant's father raped a girl in the village in 2005 and fled subsequently. The villagers who were Maoists demanded the Applicant and his family to leave the village. The Applicant did not. The villagers assaulted him. They threatened to kill him and his family. The Applicant and his family later left the village. The Applicant finally went to Kathmandu.
4. In mid-2006, the Applicant was harassed by a Maoist member. The Applicant feared he would be forced to join the Maoists or be killed. He decided to leave Nepal.
5. The Applicant left Nepal on 5 February 2007 for China. He came to Hong Kong illegally on 9 February 2007. He sought asylum with the UNHCR but his application was refused. On 4 August 2007, the Applicant was arrested by the police. He raised a non-refoulement claim on 8 August 2008.
6. In the ensuing two‑tier screening process here, the Director of Immigration (“the Director”) first refused the Applicant's claim with respect to (i) risk of torture[1], (ii) risk of persecution[2] and (iii) risk of torture or cruel, inhuman or degrading treatment or punishment (BOR3 risk)[3]. The Applicant appealed to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“TCAB/NCPO” or simply “the Board”). The Board refused his appeal with respect to those three applicable grounds on 13 May 2015.
7. Later, the Director further refused the Applicant's claim with respect to the fourth applicable ground: risk of violation of the right to life (BOR2 risk)[4]. The Applicant did not appeal against the Director's further decision.
8. On 15 March 2018, the Applicant applied for leave for judicial review.
Timeline
9. Things happened in this order: –
| 2007-2-5 |
The Applicant left Nepal for China. |
| 2007-2-9 |
The Applicant entered Hong Kong illegally from China. |
| 2007-8-4 |
The Applicant was arrested by the police. |
| 2008-8-8 |
The Applicant raised a non-refoulement claim. |
| 2014-7-25 |
The Director refused the Applicant’s claim with respect to these three applicable grounds: torture risk, persecution risk and BOR3 risk. [“the Director's decision”] |
| 2014-12-15 |
The Applicant failed to appear before the Board for appeal. |
| 2015-5-13 |
The Adjudicator refused the Applicant’s appeal with respect to these three applicable grounds: torture risk, persecution risk and BOR3 risk. [“the Board's decision”] |
| 2016-12-15 |
The Director invited the Applicant to submit additional facts for the consideration of BOR2 risk. |
| 2016-12-29 |
The Applicant failed to submit additional facts by the deadline or thereafter. |
| 2017-1-10 |
The Director refused the Applicant’s claim with respect to the last applicable ground: BOR2 risk. [“the Director's further decision”] (There was no appeal.) |
| 2018-3-15 |
The Applicant applied for leave for judicial review. |
Respondents
10. 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.
11. In Form 86 (the notice of application for leave to apply for judicial review), the Applicant named the Director and the Adjudicator as respondents. The Director is the first putative respondent; the Adjudicator is the second putative respondent.
12. 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] The Applicant cannot seek leave for judicial review against the Director's decisions. Therefore, I shall deal with his application in relation to the Board's decision only.
The Director's decision
13. In his decision dated 25 July 2014, 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.
14. In his further decision dated 10 January 2017, the Director did not accept the Applicant faced BOR2 risk. He refused the Applicant's claim with respect to that last applicable ground.
The Board's decision
15. The Applicant appealed to the Board against the Director's decision. The Board hearing was scheduled for 15 December 2014. The Applicant was absent.
16. On the available information and evidence before her, the Adjudicator found the Applicant had not been inflicted with serious injury. There was no evidence the Maoists continued to look for him. The Adjudicator considered the Maoists were not keen to recruit the Applicant or to harm him. There was no evidence of state instigation or endorsement of the Maoists’ acts. The complained situation was not on account of any Convention reason (race, religion, nationality, membership of a particular social group or political opinion). The Adjudicator considered that many years had passed since the alleged incidents. The Maoists had already changed their terrorist status and the political scene in Nepal was different. The Adjudicator was satisfied reasonable state relocation was available to the Applicant.
17. The Adjudicator did not accept the Applicant faced any torture risk, persecution risk or BOR3 risk. On 13 May 2015, she refused the Applicant's claim with respect to those three applicable grounds. [The Applicant had not appealed against the Director's further decision dated 10 January 2017 relating to BOR2 risk.]
Grounds for judicial review
18. In Form 86, the Applicant complained against the Director and the Adjudicator. As said in paragraph 12 above, I shall deal with his application in relation to the Board's decision only.
19. The Applicant complained the Adjudicator’s decision was not reasonable or fair. He said the Adjudicator failed to give him sufficient time and chance to arrange relevant evidence.
Court hearing
20. The hearing took place on 11 September 2018. The Applicant was in person. A Nepali interpreter provided service in court.
21. The Applicant said a lawyer helped him to prepare Form 86 and the affirmation. All the grounds of judicial review were in the documents.
22. The Applicant confirmed he had submitted all of his case to the Director and he had filed everything with the Board.
23. The Applicant said he did not know the Board's hearing was scheduled for 15 December 2014. He also said he did not receive the Board's decision.
24. The Applicant said he had lived in Shanghai Street from 2007 until he moved to Sai Ying Pun in March 2015. He lived in Sai Ying Pun for 7 months before moving further to Wanchai for a week and then to Jordan. The Applicant was equivocal whether he had informed the Immigration Department of any address change.
25. The Applicant said he had not reported to the Immigration Department for recognizance at some stage in 2016. He was arrested in February 2018. Then he filed the current application in mid-march 2018.
Discussion
26. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.
27. 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]
28. The Applicant said he did not know the Board hearing was scheduled for 15 December 2014.
29. According to para. 33 of the Adjudicator’s report, the Applicant personally collected the appeal bundle on 8 December 2014 and he was informed of the appeal hearing arrangement. I am sure the Applicant was told the hearing was scheduled for 15 December 2014. He was absent then for reasons only known to himself.
30. The Applicant said he did not receive the Board's decision dated 13 May 2015. He said he was living in Sai Ying Pun at that time and he had not gone back to his old address in Shanghai Street to check his mail.
31. The Director listed the Applicant's reported addresses over the years in a letter dated 20 September 2018. The Applicant never informed the Immigration Department that he had moved to Sai Ying Pun. If the Applicant did not receive the Board's decision in May 2015 duly sent to his reported address, he could not complain because it was his own fault.
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 Rules 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 that there is good reason for extending time. The Applicant must provide good reason 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 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]
35. The Board's decision came out on 13 May 2015. The Applicant filed the current application for leave for judicial review 34 months later on 15 March 2018. Excluding the 3-month grace period for filing, he was late for 31 months.
36. As said, if the Applicant did not receive the Board's decision in May 2015 due to his living in another address which he had not told the Immigration Department, that was his own fault.
37. The Applicant could show no good reason for the delay, which was undue and substantial. The prejudice that would be caused to the putative respondent would be significant. Discipline should be maintained in the area of public law. The current application for leave for judicial review involved no issue of general importance and the Applicant's argument had no merits at all.
38. The Applicant complained the Adjudicator failed to give him sufficient time and chance to arrange relevant evidence.
39. The Applicant was told the appeal hearing was scheduled for 15 December 2014. He received the appeal bundle on 8 December 2014.
40. According to para. 9.6 of the ‘Principles, Procedures and Practice Directions of the Torture Claims Appeal Board’[10] and para. 12.6 of the ‘Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme’[11], 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.
41. The bundle was given to the Applicant 7 calendar days (or 6 working days) prior to the Board hearing. The bundle was served on the Applicant in time.
42. The appeal bundle would consist mostly of documents that had been seen or submitted by the Applicant during the first-tier screening of his claim. The Applicant's case was not difficult. There was no evidence to show the bundle was difficult or voluminous.
43. 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 he really needed more time to prepare for his appeal. He knew the hearing was scheduled for 15 December 2014. He was absent for no good reason.
44. The Applicant complained the Adjudicator’s decision was not reasonable or fair.
45. I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. The Adjudicator had proper basis for her finding, conclusion and decision which were not Wednesbury unreasonable. She made no errors of law and there was no procedural unfairness. The Applicant had been given reasonable and sufficient opportunities to state and elaborate his case. He was absent from the Board hearing for no good reason. The Adjudicator was acquainted with the facts. She 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.
Conclusion
46. The current application for leave for judicial review is late. The Applicant fails to show any good reason for his delay. There are no circumstances that oblige the court to consider his late application. I therefore dismiss his application for leave for judicial review.
Dated the 17th day of April 2019
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(Henry Ng)
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
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Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s 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 17/4/2019
Jit Bahadur Lama
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 17/4/2019
Adjudicator of Torture Claims Appeal Board /
Non-refoulement Claims Petition Office
1st Putative Respondent’s ref. no.:
USM 105/14/8/20/N12
Director of Immigration
2nd Putative Respondent’s ref. no.:
QA T/C 1918/08 & RBCZ/9001160/16 (formerly RBCZ/1439/08)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
[1] As defined in Part VIIC of the Immigration Ordinance, Cap 115, which definition is the same as that found in Article 1 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
[2] By reference to the non-refoulement principle under Articles 33 and 1A(2) of the 1951 Convention relating to the Status of Refugees.
[3] Under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[4] Under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[5] CACV 54/2018, para 45.
[6] Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45.
[7] CACV 219/2018 [2018] HKCA 570, para 14(1).
[8] CACV 110/2016 Kwok Cheuk Kin, para 17.
[9] Ibid., para 19.
[10] The ‘Principles, Procedures and Practice Directions of the Torture Claims Appeal Board’ was issued by the Chairperson of the Board pursuant to section 16 of Schedule 1A to the Immigration Ordinance, Cap. 115 of the Laws of Hong Kong.
[11] The ‘Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme’ was issued by the Chairperson of the Board, who had been in her capacity delegated by the Chief Executive with the authority under Article 48(13) of the Basic Law of the Hong Kong Special Administrative Region to determine the practice and procedure of the Administrative Non-refoulement Claims Petition Scheme.
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