LAMA WANGCHHU v. TORTURE CLAIMS APPEAL BOARD/NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL1569/2018

[2019] HKCFI 2114

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1569 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; or
	consideration of documents and oral submission by the Applicant in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant (Order by Deputy High Court Judge K.W. Lung):

THE APPLICATION

1.  This is the applicant’s application for leave to apply for judicial review against the respective decisions of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) and the Director of Immigration (“the Director”).

2.  The applicant requested a hearing.  The hearing was fixed at 10:00 am on 9 January 2019.  However, the applicant was absent on that day.

3.  By an Order dated 9 January 2019, this Court dismissed his application for want of prosecution.

4.  The applicant took out an application to set aside the above Order on 23 January 2019. He had filed an affirmation in support of his application. In his affirmation, he explained that he was unable to attend the hearing because he was seriously ill as he was suffering from hypertension. He attended the Department of Accident and Emergency at Kwong Wah Hospital on 9 January 2019. He took out this application on the 14^th day of the date of the Order.

5.  I am satisfied with his explanation for his absence on 9 January 2019.

6.  Pursuant to Order 1A, rule 1 and Order 1B, rule 1(2)(l) of the RHC, I shall now treat the applicant’s application as an application to set aside the order which I made on 9 January 2019 dismissing his application.  The said order is now set aside.

7.  I shall now consider the applicant’s application for leave for judicial review of the Director’s Decision and the Board’s Decision.

The applicant

8.  The applicant is a Nepalese national. On 7 May 2017, he came to Hong Kong as a visitor and was allowed to stay until 21 May 2017. He overstayed without the Director’s permission. He was arrested by police on 26 July 2017 and was referred to the Immigration Department for further investigation. On 28 July 2017, he raised non‑refoulement claim.

9.  He claimed that if he was returned to Nepal, he would be harmed or even killed by the villagers and witch doctor in Nepal from the Chaukidada Village and Rambeda Village and the Maoist members in his area.

10.  In his statement to the Director and his evidence before the Board, he said that he followed his father’s footsteps to be a priest. He studied Buddhism for 12 years. He organized other villagers to build a monastery in the shared space of the village. Other villagers objected and they had quarrels and even fights. He was injured. Other villagers advised him to leave the village. He took the advice and decided to come to Hong Kong.

The Director’s Decision

11.     The Director considered his application in relation to the following risks:

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap 115, (“the Ordinance”) (“Torture risk”);

b.  Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 (Risk of violation of the right to life) (“BOR 2 risk”).;

c.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of the HKBOR (“BOR 3 risk”); and

d.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”)

12.  By Notice of Decision dated 28 November 2017 (“the Director’s Decision”), the Director rejected his application for the reason that his non-refoulement claim was not substantiated.

The Board’s Decision

13.  The applicant appealed to the Board. He attended a hearing on 20 April 2018. The Adjudicator noticed that the Immigration officer had not made in‑depth investigation into the applicant’s case. He decided to make enquiries with the applicant himself.

14.  Having considered the applicant’s evidence, the Adjudicator accepted his evidence. See §27 of Decision dated 26 July 2018 (“the Board’s Decision”).

15.  The Adjudicator then found that the applicant faced no real risk of serious harm of any kind in Nepal and could safely and reasonably relocate away from his home area to avoid the local villagers who held a grudge against him [41]. The Board therefore refused his appeal and confirmed the Director’s Decision.

Application for leave to apply for judicial review

16.  By Form 86 dated 8 August 2018, under Order 53, rule 3(2) of the Rules of the High Court, the applicant applied for leave for judicial review of the Director’s Decision and the Board’s Decision.

17.  In his affirmation in support of his application dated on 8 August 2018, the applicant set out the reasons below:

(1)  the hearing bundle was without translation and he did not understand the contents of it;

(2)  no interpreter or translator was provided for him for his appeal;

(3)  the Board’s Decisions were not translated to him.

DISCUSSION

The Director’s Decision

18.  In the decision in Haider Zeeshan v Torture Claims Appeal Board/Non-refoulement Claims Petition Office and The Director of Immigration [2018] HKCFI 2647, HCAL 806/2018, 5 December 2018, I held that the applicant could not apply for judicial review of the Director’s Decision without exceptional circumstances because he had appealed to the Board, which was established by statute with wider power of investigation into the facts of the matter. The Board had already heard the appeal and made its Decision.

19.  The applicant has not set out any exceptional circumstances.

20.  Also, the Court of Appeal in Re: Moshsin Ali CACV 54/2018, [2018] HKCA 549, 24 August 2018, having considered the relevant statutory provisions of the Immigration Ordinance, Cap. 115 in relation to the powers of the Director and the Board, decided:

“45. All of these features persuade us that what is intended by this structure is that the decision by the board will supersede the decision of the immigration officer and will represent the final decision on the claim at the end of its processing. For these reasons we are of the view that the judge was correct to conclude 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.”

21.  The applicant’s application for leave for judicial review of the Director’s Decision therefore fails in limine. I dismiss his application.

The Board’s Decision

22.  The applicant appeared before me. He confirmed that he had had a fair hearing before the Adjudicator as he was able to tell the full story of his case to the Adjudicator. He could understand the hearing bundle and Board’s Decision himself.

23.  I dismiss his grounds above as they are inconsistent with what he said in court.

24.  The applicant fails to show that he had a reasonable chance of success in his proposed judicial review.

CONCLUSION

25.  Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant him leave to apply for judicial review. Accordingly, I dismiss his 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