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

HCAL733/2017

[2018] HKCFI 1247

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 733 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 absent in open court;

Leave to apply for Judicial Review refused.

Observations for the Applicant (Order by Deputy High Court Judge Woodcock):

1.  The applicant is a Nepalese national who arrived in Hong Kong on 4 August 2007 as a dependent of his father.  In September 2013 the applicant was arrested for drugs offence and possession of an identity card relating to another.  He was sentenced to a drug addiction treatment centre order.  He was then sentenced to 10 months’ imprisonment for going equipped for stealing in September 2014.  In September 2016 he was convicted of being in possession of a dangerous drug and served a four-month term of imprisonment.  After his discharge from prison he was transferred to the Castle Peak Bay Immigration Centre pending deportation.  The applicant had lodged a non-refoulement claim in 2015.

2.  The Director of Immigration (“the Director”) rejected his claim on 13 January 2017.  The applicant lodged an appeal/petition to the Torture Claims Appeal Board (“TCAB”) which rejected his appeal on 19 May 2017. The applicant filed a notice of application for leave to apply for judicial review on 4 October 2017.

3.  When the applicant filed his Form 86 he was detained at the Castle Peak Immigration Centre but later on 4 December 2017 he filed a notice of change of address, having been released and moved to premises in Yuen Long.  On 3 January 2018, one month after his notice of change of address, the applicant was sent a notice of hearing at that address informing him that the oral hearing he had requested was set down on 26 January 2018.  This notice was sent to the applicant by registered post and ordinary post.  Both letters were returned to the judiciary unopened, unclaimed and the reason given was that the addressee was unknown at that address.

4.  I am satisfied that the notice was sent to the address given to the judiciary by the applicant on 4 December 2017.  It is the applicant’s duty to ensure that he provides an accurate address.  The applicant did not attend the hearing on 26 January 2018.  Under such circumstances, I proceeded to consider his application on the papers.

Application refused due to delay

5.  The applicant has failed to file his Form 86 in a timely manner within three months of the date of the adjudicator’s decision (order 53 rule 4).  He is in fact about six weeks late.  His notice of application does not acknowledge the delay nor does it set out the full reasons for the delay as it should.  There is no application for an extension of time to file his application in light of the delay.  There is no acknowledgement of the delay nor any explanation in his supporting affirmation.

6.  The delay in filing this application is not insignificant, there was no explanation for the delay and not even a request for an extension of time.  In any event, the merits of the substantive application, after a perusal of the papers, are weak.  Moreover, the application does not raise any questions of general importance.  Delay alone is enough to dispose of this application and I refuse leave to apply for judicial review.

Observations

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 to apply for judicial review.

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