NAV RAJ MANANDHAR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL 319/2017

[2019] HKCFI 1012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 319 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 present / absent in open court;

Leave to apply for judicial review dismissed.

Observations for the Applicant:

1.  The applicant is a 30-year-old national of Nepal who arrived in Hong Kong on 4 August 2007 on a dependent visa to his father who is a local resident.  Between September 2013 and September 2016 he had been convicted and sentenced to prisons on three separate occasions on various charges of possessing false identity card, going equipped for theft and possession of dangerous drugs, during which he raised a non-refoulement claim with the Immigration Department on the basis that if he was deported to Nepal he would be harmed or killed by supporters of rival political party and/or by the police for being involved in a fight with those supporters. 

2.  On 13 January 2017 his claim was rejected by the Director of Immigration (“the Director”).  He then lodged an appeal to the Torture Claims Appeal Board (“the Board”) which was dismissed by the Board on 19 May 2017 and the Director’s decision was affirmed.

3.  On 22 June 2017 the applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, but no ground for seeking relief was given in either his Form or in his supporting affirmation of the same date.  Nor did he request any oral hearing for his application.

4.  However, before his application was dealt with by the court, the applicant on 6 October 2017 filed another Form 86 under HCAL 733/2017, and on this occasion it was to review only the Board’s decision, and for which he put forth three grounds for his intended challenge.

5.  By then he was some six weeks late with this application under Order 53, rule 4(1) of the Rules of the High Court, Cap 4A and on 11 June 2018 Deputy High Court Judge Woodcock refused to extend time for his application upon finding that his delay was not insignificant, that there was no explanation from him for such delay, and that in any event that the merits of his intended application were weak.  No appeal was lodged by the applicant against that decision.

6.  In the premises the principle of res judicata applies to the present application now before me, and although it was made first in time and, unlike his second Form 86 it was not out of time, as noted above Judge Woodcock did already consider the merits of his substantive application in her decision when she stated as follows:

“ 7.  In any event, I did consider the applicant’s affirmation and found no substance in the grounds of his application. The adjudicator’s decision was without fault; she carefully considered and analysed his evidence and claim. She rejected his appeal/petition because she did not believe his claim. She did not believe he was a genuine claimant. She rejected his evidence that he was the chairman of his student union of his college. She did not believe that he had been chosen as the chairman by the Congress Party of Nepal which supported that student union.

8.  The adjudicator also gave full and careful reasons for rejecting his evidence that he was being pursued by the youth wing of the Communist Party of Nepal as well as being a wanted man by the Nepalese police. She concluded that he was at no risk of personal harm if he returned to Nepal. She found that the applicant was unsuccessful in showing he was at risk of torture, unable to invoke the protection of BOR 2 or BOR 3 and could not prove a persecution risk for the purpose of a non-refoulement protection claim. The adjudicator confirmed the decisions of the Director.

9.  The applicant’s grounds were weak, without substance and without merit.  Even if there had been no delay or that an extension of time had been granted, the applicant’s claim is not reasonably arguable.  There is no realistic prospect of success.  There was no error of law by the adjudicator nor any evidence of procedural unfairness nor a failure to adhere to a high standard of fairness.  The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable.  I would have refused leave for judicial review.” 

7.  As for his intended challenge against the Director’s decision in his first Form 86, the Court of Appeal has already held in Re Moshsin Ali [2018] HKCA 549 that the decision of the Director has been superseded by the Board’s decision once a non-refoulement claimant has pursued an appeal to the Board, and that the Director’s decision is therefore no longer susceptible to judicial review.

8.  Had that application been brought before me earlier back in 2017 before he filed his second Form 86, in the absence of any reasonably arguable ground being put forward by the applicant or any legal error or procedural unfairness being shown in either decisions of the Director or the Board, I would have reached the same conclusion as DHCJ Woodcock that there were simply no merits or substance in the applicant’s intended application.

9.  In the premises and for the reasons given, high standards of fairness does not entitle the applicant to proceed with this application albeit that it was filed first in time and within time, and accordingly it is hereby 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