SHREESH RABINDRA PRASAD v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1758/2018

[2020] HKCFI 1281

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1758 of 2018

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

Leave to apply for Judicial Review be granted.

Observations for the Applicant:

THE APPLICATION

1.  This is the applicant’s application for leave to apply for judicial review of the Decision dated 17 August 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s August Decision”).

2.  The applicant is not legally represented and he did not request an oral hearing. In the course of hearing similar applications, this Court discovered that most of the applicants appearing in person had no idea of the purpose of judicial review, which is for this Court to examine whether they had had a fair hearing at the Board. They asked the Court to re-examine the facts of the case. The Court will not re-examine the facts in support of the claim. See Re Ali Haider CACV8/2018, [2018] HKCA 222 at §§ 13 & 14. The Court therefore, pursuant to Order 1B, rule 1 (2)(c) of the Rules of the High Court, by letter, invited the applicant to appear before it in order to explain the above to them. At the same time, the Court will examine if the parties in Form 86 are correct. The Court will also see if there are any further grounds in support of the application. In response to the Court’s invitation, the applicant attended the hearing on 20 November 2019.

The applicant

3.  The applicant is a Nepalese national. He came to Hong Kong on 27 January 2015 as a visitor and was permitted to stay as such until 28 January 2015. He overstayed. On 3 February 2015, he surrendered to the Immigration Department. He lodged a non‑refoulement claim on the same day.

4.  He claimed that if refouled, he would be harmed or killed by the members of the Communist Party of Nepal (the “Maoists”) in Nepal.

5.  He was a supporter of the Communist Party of Nepal (Unified Maxist-Leninist) (the “Marxist”) as he joined it in 2006. He assisted this party to canvass votes. There was an election for the Constitution Assembly in November 2013. In September 2013, he was approached by three or four members from the Maoists to join their party. He refused.

6.  In early November 2013, there was a fight between two groups of people. The Marxist had 10-15 people and the Maoist had about 15 people. The fight went on for 15-20 minutes with wooden sticks. The group dispersed. He had suffered minor injury himself. Later, he was told that one of the members of the Marxist had died and they accused him and others of murdering this member. Because of this accusation, he fled to live in other places. He had also reported the incident to police. However, he was traced by the Marxist members in other places. They also went to his home and asked his mother his whereabouts. He was intercepted by them when he was in Kathmandu where he lived in his friend’s home. His friend advised him to leave Nepal for Hong Kong. He took his friend’s advice and left Nepal for Hong Kong in January 2015.

The Director’s Decisions

7.  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”).

8.  By Notice of Decision dated 29 June 2016 (the “Director’s Decision”) and Notice of Further Decision dated 3 August 2017 (the “Director’s Further Decision”), the Director refused his claim for the reason that his claim was not substantiated. The Director took the view that there were no substantial grounds for believing that he would be in danger of being harmed or killed by the Maoist upon his return to Nepal [16]; that state protection was available to him [18] and that internal relocation was an option open to him [19]. His claim under BOR2 risk was not established.

The Board’s Decisions

9.  The applicant appealed to the Board against the Director’s Decision by filing a Notice of Appeal on 18 August 2016. He was late because he had to file the Notice of Appeal within 14 days from the Director’s Decision.

10.  The applicant had given reasons for his delay under section 5 of the Notice of Appeal that he had changed his room and that he lost his mobile number provided to the Immigration Department.

11.  The Board did not accept his reasons, holding that it was his responsibility of updating his address with the Immigration Department. It also held that he should keep in touch with the Duty Lawyers Scheme, a lawyer of which had represented him in the screening process. It also said that it did not understand what the applicant meant by saying that he lost his mobile number provided to the Immigration Department. It did not make further enquiry into this issue.

12.  By Decision dated 9 March 2017 (“the Board’s March Decision”), the Board refused to extend time for the applicant to file his Notice of Appeal out of time. The present application does not ask for leave to apply for judicial review of the Board’s March Decision.

13.  The applicant also filed a Notice of Appeal against the Director’s Further Decision, this time, within time.

14.  The Board considered that it was not necessary to hold a hearing in connection with the BOR 2 risk as there were no materials or evidence provided by the applicant to consider. See paragraph 13 of the Board’s Decision dated 17 August 2018 (the “Board’s August Decision”).

15.  By the Board’s August Decision, the Board refused the applicant’s appeal and confirmed the Director’s Further Decision.

Application for leave to apply for judicial review

16.  The applicant filed Form 86 on 28 August 2018 for leave to apply for judicial review of the Board’s August Decision.

17.  In his affirmation in support of his application, he did not set out the grounds in support of his application. He did not say what error the Board had committed in coming to its August Decision.

DISCUSSION

18.  In the Director’s Further Decision, the Director stated that he invited the applicant to submit additional facts, if any, which he considered relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection [emphasis added]. In paragraph 4, the Director stated that his Decision was not affected, having considered the applicant’s additional materials.

19.  The Board in its August Decision, did not consider the Director’s Decision. It only dealt with BOR2 risk. See paragraph 39.

20.  As the Director had re-affirmed his Decision in his Further Decision, it is incumbent upon the Board to consider the Director’s Decision, which it refused to consider because of the applicant’s late appeal. This is because the Director’s Further Decision encapsulates his Decision dated 29 June 2016.

21.  Before I come to my conclusion of granting leave to the applicant to apply for leave to apply for judicial review, I shall first state the Board’s handling of the applicant’s appeal against the Director’s Decision, which the Board refused to extend time for him to appeal.

22.  The Court of Appeal in Re Khan Kamal Ahmed [2019] HKCA 377, 2 April 2019 Lisa Wong J. held:

“17. Where a notice of appeal is filed out of time, s 37ZT(2) mandates the Board to decide as a preliminary decision without a hearing whether it allows the late filing of the notice of appeal, and in doing so, to take account of “any other relevant matters of fact within the knowledge of the Board” apart from the explanation for the delay.

18. Where there is a serious or significant breach for which no good reason is given, the decision maker moves to evaluate all the circumstances of the case with a view to dealing justly with the application.

… …

20.     It was incumbent upon the Board, in exercise of its discretion to extend time for appeal, to take the merits of the applicant’s case into account regardless of the procedural breaches or the lack of explanation therefor.”

23.  In the hearing bundle before the Board, the Director’s Decision should be found and the Board should be able to consider the Director’s reasons for his decision. However, the Board had not considered the Director’s Decision.

24.  I also take the view that it would be unreasonable to require the applicant to keep in touch with the Duty Lawyer Scheme in relation to his appeal to the Board because he was not legally represented by the Duty Lawyers Scheme for the appeal.

25.  When the Board had doubt about the explanation given by the applicant, it is only fair for the applicant to be given the opportunity of clarifying such doubt for the Board before the Board made the decision of refusing to extend time for him to appeal. In my view, this may amount to procedural unfairness to the applicant.

26.  In the Board’s August Decision, the Board noted that the applicant claimed that relying upon hearsay information, he feared that a plan by his opponents of an underground communist party had been made to kill him [20]. The Board said in paragraph 27 of its August Decision that it was not clear which Maoist group the applicant belonged to. In the circumstances, it would be fair for the Board to hold a hearing for clarification with the applicant, which it had failed to do.

CONSCLUSION

27.  For the reasons above, it is reasonably arguable that the applicant may have ground to apply for judicial review of the Board’s August Decision. I grant leave to the applicant to apply for judicial review. The applicant should take out his application in accordance with Rule 5 of Order 53 of the Rules of the 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

Form CALL-1