RE SHAHI YASODA

CAMP 169/2019

[2021] HKCA 368

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 169 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO. 311 OF 2018)

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J U D G M E N T

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The Court:

1.  This is an application for extension of time to appeal against the decision of Deputy High Court Judge Josiah Lam given on 17 April 2019 refusing leave to the applicant to apply for judicial review.  The intended judicial review was against the decision of the Torture Claims Appeal Board (“the Board”)/adjudicator of the Non-Refoulement Claims Petition Office dated 16 January 2018 dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 26 June 2017 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Nepal.  She entered Hong Kong on 18 March 2014 and was permitted to remain until 16 June 2014.  She overstayed and surrendered to the authorities on 15 July 2014.  She lodged a non-refoulement claim on 20 August 2014. 

3.  The applicant’s claim was based on threats from her brother-in-law and other people in her village because she is a Christian.  The details of the applicant’s claim have been summarised by the judge at [2] to [6] of the CALL-1 Form.

4.  By a Notice of Decision dated 26 June 2017 (“the Director’s Decision”), the Director decided against the applicant’s claim.  The Director’s Decision covered the BOR 2 risk^[1], the BOR 3 risk^[2], the persecution risk^[3], and the torture risk^[4].

5.  The applicant appealed to the Board.  After a hearing on 18 October 2017, the Board dismissed the appeal on 16 January 2018 (“the Board’s Decision”).  The Board’s Decision covered all four grounds for non-refoulement protection.

6.  At [46] of the Board’s Decision, the Board held that the applicant would not face any risk of harm from her relatives or villagers if she returns to her home area because she did not face any problems or difficulties from them after they became aware of her conversion to Christianity.

The judge’s decision

7.  The applicant filed a Form 86 on 27 February 2018.  She complained that the Board’s Decision was not reasonable or fair.  She also complained the Board failed to give her sufficient time and chance to arrange relevant evidence.  She stated that she would face danger and torture upon her return and that she could not find any safe place to stay in.  She claimed that state protection is not available and internal relocation would not be viable.  

8.  In her affirmation in support of the leave application dated 27 February 2018, the applicant exhibited the relevant documents.

9.  After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the judge refused to grant leave for judicial review. The judge gave the following reasons in refusing leave to apply for judicial review at [26] to [31] of the CALL-1 Form:

“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’. 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.’

28. The Applicant complained the Adjudicator’s decision was not reasonable or fair. She also complained the Adjudicator failed to give her sufficient time and chance to arrange relevant evidence. The Applicant’s complaints lacked specifics.

29. It was apparent from the Adjudicator’s report that the Adjudicator had made thorough inquiry of the Applicant's claim. She also studied relevant country-of-origin information (‘COI’). The Adjudicator did not reject the Applicant's account of events. However, she rightly noted the Applicant had stayed in Kathmandu uneventfully for eight years after 2006 and the Applicant only left Nepal in 2014 when her daughter was pregnant in Hong Kong. The Adjudicator did not accept the Applicant's explanation that she could not leave earlier because of financial constraint. She concluded the Applicant did not have genuine fear of being harmed by her enemies in Nepal but that the Applicant came here only to stay with her daughter. The Adjudicator did not accept the Applicant faced any torture risk, persecution risk, BOR2 risk or BOR3 risk and thus refused her appeal with respect to all the four applicable grounds. The Adjudicator’s finding, conclusion and decision were eminently reasonable.

30. 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 Adjudicator had engaged in joint endeavour with the Applicant in the screening process. The Applicant had been given reasonable and sufficient opportunities to state and elaborate her case. 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

31.     The Applicant's complaints are not reasonably arguable. She has no realistic prospect of success in the sought judicial review. I therefore refuse to grant her leave for judicial review.”

Grounds for appeal

10.  Pursuant to Order 53 Rule 3(4) of the Rules of the High Court, the applicant must lodge an appeal within 14 days.  However, she wrongly filed a summons on 2 May 2019 for leave to appeal out of time when the 14-day period had not yet expired. Her application was nevertheless dismissed by DHCJ KW Lung on 12 July 2019.

11.  By a summons dated 23 July 2019, the applicant sought leave to appeal against the order dated 12 July 2019 by DHCJ KW Lung.  In the summons she claimed that the order in HCAL311/2018 was unfair and unreasonable.

12.  In her affirmation dated 23 July 2019, she deposed that:

“two grounds…namely whether lack of legal representation in a reasonable basis to challenge the fairness of the procedure and there might be an additional basis for advancing a case on the BOR 2 risk separate from BOR 3 risk, torture risk and persecution.”

13.  In her skeleton submissions dated 6 August 2019, the applicant submitted that:

(1)     both the Board and DHCJ Josiah Lam placed the wrong emphasis on family union (i.e. the applicant came to Hong Kong only to stay with her daughter) when it should be on the religious aspects of the applicant’s claim.  Religious persecution may give rise to a claim under BOR 3 risk, torture risk and persecution risk;

(2)     before the Board, the applicant specifically referred to a number of incidents related to Christians in Nepal but the judge did not cover these incidents; and

(3)     the delay in bringing the intended appeal was short and was due to lack of legal representation.  The respondent would not suffer any prejudice from the delay.

Discussion

14.  In the Court of First Instance, the applicant sought leave to appeal against the decision of DHCJ Josiah Lam when the period of appeal has not yet expired.  By the time her application was heard by DHCJ KW Lung, the time for lodging a notice of appeal has expired and no notice of appeal was filed.  In the circumstances, we would treat the summons filed in this court on 23 July 2019 as an application for extension of time to appeal.  

15.  In the Form 86, the applicant did not raise the ground based on the alleged wrongful focus by the Board on family union.  The judge therefore did not commit any error for not dealing with that ground.  Further, it is not open to the applicant to raise these matters on appeal for the first time, well outside the time limit for bringing judicial review proceedings (see Re Nupur Mst [2018] HKCA 524, CAMP 54/2018 at §14(4)). 

16.  As for the ground based on the incidents concerning Christians in Nepal, although the judge did not deal with them specifically, the applicant has not explained why such failure would amount to an error which materially impacts on the judge’s reasoning or conclusion.

17.  We note that the Board has concluded that the applicant is unlikely to be subject to any of the proscribed harms upon her return.  At [44] of its decision, the Board referred to the incident in 2006, her occupation between 2006 and 2014 and the fact that she was apparently able to live freely as a Christian in Nepal.  Having considered the Board’s Decision in detail, we are of the view that the applicant has not identified any public law error in this conclusion and that the Board has adequately dealt with her claim based on religious persecution.

18.  As for the ground based on the lack of legal representation, this court has repeatedly held that a non-refoulement claimant is not entitled to legal representation at all stages of the proceedings (Re Zahid Abbas [2018] HKCA 15). Representation at later stages is merits based, and this is not procedurally unfair.  In any event, the applicant failed to show how the lack of legal representation caused any real prejudice in the leave application.

19.  As for the ground based on the possibility of advancing another case based on BOR 2 risk, this ground is vague and lacked particulars.  This ground is not reasonably arguable.

20.  We therefore do not see any prospect of success in the intended appeal.  We will not grant extension of time for a hopeless appeal.  The summons of 23 July 2019 is dismissed accordingly.

21.  We are also of the view that the application is totally without merit.  Pursuant to Order 59 Rule 2A(8) of the Rules of the High Court, we make an order that no party may request this determination be reconsidered at an oral hearing inter partes.