SALINA THAPAMAGAR v. TORTURE CLAIMS APPEAL BOARD

HCAL 607/2018

[2020] HKCFI 2600

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNo. 607 of 2018

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 oral submissions by (counsel for) the Applicant in open court / the Applicant being absent in open court;

1.  extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 24 May 2016 refused; and

2.  the application for leave to apply for Judicial Review dismissed.

Observations for the Applicant:

1.  The Applicant is a 44-year-old national of Nepal who arrived in Hong Kong on 16 June 2004 with permission to remain as a visitor up to 23 June 2004 when she did not depart and instead overstayed, and was only arrested by police on 13 August 2009 for which she was subsequently convicted and sentenced to prison for 5 months. Upon her discharge from prison and when she was referred to the Immigration Department for deportation, she raised a torture claim on the basis that if she returned to Nepal she would be harmed or killed by her abusive husband and/or her creditor for failing to repay her loan and/or members of the political party Communist Party of Nepal (“Maoist”) for refusing to join their party, and after her torture claim was rejected, she then sought non-refoulement protection on the same basis. She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Doba Village, Myagdi District, Nepal. After leaving school she married her husband who however became abusive towards her by beating her almost every day, and then she was twice gang raped by some unknown men in the nearby forest, while in 2003 some Maoist members came to her home village to demand that she and other villagers to join their party, and when she refused, they threatened that they would return next time, and if she still refused to join their party, she would be killed.

3.  As she became fearful for her life, the Applicant therefore borrowed a loan from a local money-lender so that she could depart Nepal, which she did in June 2004 for Hong Kong where she eventually overstayed, for which she was arrested by police on 13 August 2009 and was subsequently convicted and sentenced to prison for 5 months, and upon her discharge and was referred to the Immigration Department for deportation, she raised her torture claim, and after it was rejected, she then sought non-refoulement protection, for which she completed a Supplementary Claim Form on 30 October 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”). 

4.  While released on recognizance pending determination of her claim, the Applicant was again arrested by police for undertaking unauthorized employment for which she was sentenced to prison for 12 months.     

5.  By a Notice of Decision dated 23 July 2015 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all the remaining applicable grounds other than torture risk including risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) (“BOR 3 risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention Relating to the Status of Refugees (“persecution risk”).

6.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from her perceived enemies upon her return to Nepal as low on the basis of the following findings and reasons:

(a) that there was absence of or low intensity and frequency of past ill-treatment from them;

(b) that reliable and objective Country of Origin Information (“COI”) show that the Maoist and the Nepalese government signed a peace agreement in 2006 which formally ended their conflicts, and since 2012 the Maoist has been delisted by the US government as a terrorist entity, and hence the Maoist people are no longer a threat;

(c) that the Applicant’s problems with her abusive husband and her creditor were private domestic or monetary disputes without any official involvement that state or police protection would be available to the Applicant; and

(d) that reasonable internal relocation alternatives are available in Nepal with a large population of 30 million people spread across a vast territory of more than 147,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other part of Nepal away from her home district in large cities such as Butwal where it would be difficult if not impossible for her husband or creditor or any Maoists to locate her.

7.  On 10 August 2015 the Applicant lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, but she was by then outside the 14‑day period stipulated by section 37ZS of the Immigration Ordinance, Cap 115 (“the Ordinance”) to file her notice of appeal which expired on 6 August 2015, and hence she was late by 4 days with her Notice of Appeal.

8.  Pursuant to section 37ZT(2) of the Ordinance, the Board proceeded to decide as a preliminary decision without a hearing whether to allow the late filing of the Applicant’s appeal, and on 24 May 2016 it refused the late filing of her Notice of Appeal upon finding no satisfactory explanation for her delay, that her Notice of Appeal did not disclose any special circumstances by reason of which it would be unjust not to allow the late filing, and that there was no other relevant matters of fact which may justify allowing the late filing of her Notice of Appeal.  

9.  On 25 January 2017 the Director on his own initiative invited the Applicant to submit any additional facts which may be relevant to her non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non‑derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”), and in the absence of any response from her, the Director by a Notice of Further Decision dated 9 February 2017 again rejected the Applicant’s non-refoulement claim on all applicable grounds including BOR 2 risk.

10.  The Applicant did not lodge any appeal to the Board against that Further Decision of the Director, and instead on 10 April 2018 she filed her Form 86 for leave to apply for judicial review of the Board’s decision of 24 May 2016, and in her supporting affirmation of the same date she put forward the following grounds for her intended challenge:

(1) that the decision not to allow her to appeal the Director’s decision is not fair because she had given valid reason for not being able to file her appeal on time; and

(2) that the Director failed to assess the ground realities in Nepal before deciding against her case.  

11.  By then the Applicant was however seriously out of time with her Form 86, as Order 53 rule 4(1) of the High Court Ordinance, Cap. 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.

12.  As the last day of the three-month period for her to file her Form 86 fell on 24 August 2016, the Applicant was therefore more than 19 months late with her intended challenge, and in considering whether to extend time, the court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393.

13.  In the Applicant’s case, a delay of more than 19 months must be considered as extremely substantial and excessive, for which she did not provide any explanation, nor can I find any reason for such serious procedural breach.

14.  As for the merits, if any, of her intended application to challenge the Board’s decision, the Applicant as noted above relies on 2 grounds which are essentially that it was unfair and unreasonable for the Board not to allow her to file her late Notice of Appeal despite having given valid reason for her slight delay.   

15.  Given the fact that an appeal to the Board is treated as a re-hearing of a non-refoulement claim in the second tier of the enhanced screening process of such claim, and in view of the serious implications of the Board’s decision on the Applicant, high standards of fairness require that its reasons for refusing to allow the late filing of her appeal be considered by the court with rigorous scrutiny.

16.  The Applicant does not dispute that she was late with her appeal to the Board, for which she explained in her statement of reasons for her late filing in Section 5 of her Notice of Appeal as follows:

“I did not receive the appeal documents until very recently. I don’t have enough money and time to find a lawyer to help me.”

17.  It would also be pertinent to note here that in section 2 of her Notice of Appeal, the Applicant merely repeated her concerns about the Maoists which she earlier made to the Director as recorded in his decision [7.41] – [7.42] without putting forward any proper or valid grounds for her intended appeal to the Board.

18.  In its decision of 24 May 2016 the Board found the Applicant’s explanation given in her Notice of Appeal did not provide any information which might satisfactorily explain the delay, nor any effective explanation covering the whole of the period of delay [13]. I agree with the Board’s observation, although even on the basis of its own assessment, the Applicant’s delay was only for 4 days which cannot on any view be considered as significant.

19.  However, it is notable that the Board did also go on to consider the other relevant matters of facts within its knowledge to see whether by reason of any special circumstances that it would be unjust not to allow the late filing of the Applicant’s Notice of Appeal, as stipulated by section 37ZT(2) & (3) of the Ordinance which it alluded to in its decision, and of which it stated as follows:

“14. The Petitioner’s statement in Section 5 of the Notice does not disclose any special circumstances by reason of which it would be unjust not to allow late filing of the Notice. There has been no denial of justice, nor any unfairness, to the Petitioner during the whole of the process of consideration of her claim for non-refoulement protection on grounds of BOR 3 risk and persecution risk. The Petitioner was assisted and represented by the DLS at every stage of the process of determination of her claim.”

20.  In addition, the Board also did take into account of the factual basis of the Applicant’s claim in what I believe to be its consideration of the merits, if any, of her appeal, as held by the Court of Appeal in Re Qasim Ali, [2019] HKCA 430, to be part of the relevant matters of facts within the knowledge of the Board required by section 37ZT(2) of the Ordinance to take account of, and of which it stated in paragraph 15 of its decision as follows:

“In case there might be any other relevant matters of fact which might explain the Petitioner’s delay in filing the Notice, I have also considered the factual basis of her claim as outlined in the decision dated 23 July 2015. There is nothing in the facts relied on by the Petitioner which might amount to special circumstances by reason of which it would be unfair or unjust not to allow the late filing of the Notice.”

21.  Furthermore, the fact that it has been established by the Director in his decision that the risk of harm in the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of Nepal, against which she did not raise any proper or valid ground for her intended appeal in her Notice of Appeal as noted above, there would have been no justification to afford her with non-refoulement protection in Hong Kong even if she had not been late with the filing of her appeal to the Board: see TK v Jenkins & Anor [2013] 1 HKC 526.   

22.  In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

23.  For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reason for her serious delay, I refuse to extend time and accordingly dismiss her leave 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