THAPA BIMALA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1649/2019

[2024] HKCFI 1383

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1649 of 2019

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 Applicant being present in open court.

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the following decisions:

(1)  Notice of Decision issued by the Immigration Department dated 24 December 2014 (“the Director’s 1^st Decision”);

(2)  Notice of further Decision issued by the Immigration Department dated 28 March 2017 (“the Director’s 2^nd Decision”); and

(3)  Determination of Late Filing of Petition dated 9 May 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s 2^nd Decision”).

2.  The decisions of (1) and (2) above should be dismissed in limine as decided by the Court of Appeal[1] as they had been appealed to the Board.

3.  The applicant requested an oral hearing and she appeared before the Court on 22 April 2024.

4.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

5.  The applicant, aged 43, is a Nepali. She entered Hong Kong illegally on 7 August 2009 and was arrested by the police on the same day. The applicant made a torture claim on 10 August 2009. The claim was made on the basis that, if refouled, she would be harmed or even killed by her husband and be arrested by the police because of the death of her husband’s woman (“her husband’s woman”). Upon the commencement of the unified screening mechanism, her torture claim had been taken to be a non-refoulement claim and was assessed on all applicable grounds.

6.  According to the applicant, she married her husband in about 2000, who left to work in Qatar about 3-4 months later. Her husband came back to Nepal to visit her and her newborn daughter a year later, after which he returned to Qatar. Thereafter, the applicant was unable to contact her husband for several years.

7.  In 2005, the applicant heard through a friend that her husband had returned to Kathmandu in Nepal. The applicant therefore immediately took a bus to Kathmandu to meet her husband. When she arrived at her husband’s flat, she saw her husband’s woman inside. The applicant was furious and hit her husband’s head with a wooden stick, which caused him to lose consciousness. She then attacked her husband’s woman with a knife for about half an hour. When the applicant’s husband regained consciousness, he attacked the applicant with bare hands causing her to suffer from minor bruises. The applicant then left the scene, but later on the same day, she was informed that the police was after her. About 5 days later, she also learnt that her husband intended to kill her and that she was still being pursued by the police because her husband’s woman had died. Out of fear, the applicant left Nepal for Macau on 16 July 2009. She then entered Mainland China on 17 July 2009 and eventually sneaked into Hong Kong on 7 August 2009.

8.  While in Hong Kong, the applicant received death-threatening messages from her husband. Her mother also informed her about the death threats posed by her husband when she last contacted her. Thereafter, the applicant changed her phone number and lost contact with her family.

9.  The applicant did not consider seeking help from the authorities and internal relocation because the police were looking for her all over the country for murdering her husband’s woman. She was afraid to be sentenced to life imprisonment.

10.  Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 24 December 2014 (“the Director’s 1^st Decision”).

The Director’s Decisions

11.  The Director considered the applicant’s claim in relation to the following risks:

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

b.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“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 way of the Director’s 1^st Decision, the Director dismissed the applicant’s claim on Torture risk, BOR 3 risk and Persecution risk. The Director found that (i) the claimed risk of harm from her husband due to her murder of her husband’s woman was not supported by any evidence and was merely hearsay [12]-[14]; (ii) there was no indication to show that she would be harmed by the police or that she would not receive a fair trial [15]-[20]; (iii) internal relocation would be viable [21]-[23] and (iv) the applicant’s case failed to meet any of the requirement under BOR 3 risk [24]-[26], Persecution risk [27]-[31] or Torture risk [32]-[34].

13.  In the Notice of Further Decision dated 28 March 2017, the Director also rejected the applicant’s claim on BOR 2 risk (“the Director’s 2^nd Decision”) for the reason that there was no evidence to show that her right to life under BOR 2 would be violated upon her return.

The Board’s 1^st Decision

14.  The applicant appealed the Director’s 1^st Decision to the Board. On 29 October 2015, the Board conducted an oral hearing.

15.  Having considered the applicant’s evidence, the Board was not satisfied that the applicant’s case met any of the requirement under Torture risk [5]-[17], [24], BOR 3 risk [25]-[29] or Persecution risk [30]-[34]. Furthermore, the applicant could avoid her husband by internal relocation according to the Country of Origin Information (“COI”) [18]-[23]. By Notice of Decision dated 24 December 2014 (“the Board’s 1^st Decision”), the Board dismissed the applicant’s appeal against the Director’s 1^st Decision.

16.  The applicant did not apply for leave for judicial review of the Board’s 1^st Decision.

The Board’s 2^nd Decision

17.  The applicant also appealed the Director’s 2^nd Decision to the Board. She filed her Notice of Appeal on 4 May 2017 and was late by 21 days [5]. The applicant’s explanation was that she did not receive the Director’s 2^nd Decision in time as she only received it on 2 May 2017 when she went to the Immigration Department. Such explanation was not accepted by the Board as evidence showed that the Director’s 2^nd Decision was sent to her stated address by post timely and had not been returned undelivered [8]. In any event, there was no merit in the applicant’s appeal [11]-[14].

18.  The Board therefore dismissed the applicant’s appeal and confirmed the Director’s 2^nd Decision.

Application for leave to apply for judicial review of the Board’s Decision

19.  The applicant has filed Form 86 dated 17 June 2019 for leave to apply for judicial review of the Board’s Decision.

20.  In the affirmation in support of her application, the applicant raised the reasons below.

(1)  She was without legal or language representation.

(2)  She did not receive the Director’s 2^nd Decision. She had provided accurate address and should not be held liable for not filing the Notice of Appeal in time.

(3)  She was not given the chance to adduce evidence on her BOR 2 risk claim as the Board refused to hear her, saying that she was lying about not receiving the letter from the Director and had chosen not to respond to or provide additional facts. This shows the adjudicator was biased.

(4)  The Director’s 2^nd Decision was made about 2 years after the Director’s 1^st Decision. She was not allowed to update the authorities.

(5)  The duty lawyer only considered that she had no merits in respect of the Director’s 1^st Decision. But the duty lawyer did not advise her on the Director’s 2^nd Decision. She does not know about BOR 2 risk.

(6)  She was not provided with legal assistance for BOR 2 risk.

(7)  The Board’s 2^nd Decision was not translated or read to her.

(8)  She barely speaks English and she cannot read or write English properly. She cannot understand the Board’s 2^nd Decision.

(9)  She was not provided with interpretation assistance for her to understand the Board’s Decisions.

DISCUSSION

21.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

22.  The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said she understood the Board’s Decisions. She was provided with an interpreter at the hearing before the Board. She asked this Court to review her case.

23.  Although the applicant applies for judicial review of the Board’s 2^nd Decision, her application has to be considered together with the Board’s 1^st Decision as the facts relied upon are the same. I shall consider the Board’s 1^st Decision as well.

24.  The Board made its decisions in the Board’s 1^st Decision for the reasons below:

“22. The Appellant chose to remain silent at the oral hearing and so I had no opportunity to hear her comments about the COI.

23. In light of the COI, I do not accept that H of over 10 years ago is still interested in locating the Appellant all over Nepal in order to kill her, especially if she resides in other than her home locality …

28. The Appellant has not suffered severe injuries or serious harm which would place her into the criteria of CIDTP….

29. Further and in any event, she can safely reside in Nepal, at least other than her home locality, which is a reason in addition to, and independent of, the reason in the paragraph above for a claim under BOR 3 to fail.

33. The Appellant has not suffered severe injuries or serious harm which would place her into the criteria of Persecution. …I find no substantial ground to believe she will face a future risk of such harm….

34. … I have considered the Grounds of Appeal. I can find no merit in them.”

25.  The Board made its decisions in the Board’s 2^nd Decision for the reasons below:

“5. On 4 May 2017 the Appellant appealed to the TCAB against the Director’s dismissal of her further claim. Her Notice of Appeal/Petition (“NOA/P”) was therefore filed out to time by 21 days.

8.1 … … She says that she had only received the invitation letter and the NOFD when she went to the Immigration Department at Skyline Tower on 2 May 2017. However the Immigration Department informs the TCAB in writing dated 21 February 2019 that the NOFD was issued to the Appellant by post on the date of the NOFD (i.e. 28 March 2017), and the letter had not been returned as undelivered. I have no reason to suspect that the Appellant had not received the NOFD by 30 March 2017 even if we allow a day more for postal delivery to enable her to file her NOA/P latest by 13 April 2017.

8.2 The Appellant does not say she had changed her address, but if that was the case she still had no reasonable excuse for the non-receipt of the NOFD in time, as the Court of Appeal had said that it is the responsibility of an appellant to provide current address to the Director, hence it is the appellant who will have to ‘bear the consequence’ Karamjit Singh [2018] HKCA 460. In today’s case the breach was a lengthy 3 weeks.

9. There is no justification to grant extension of time to file the appeal. And there is nothing to the facts relied on by the Appellant as alleged in her USM case and in the present NOA/P which might amount to special circumstances by reason of which it would be unfair or unjust not to allow the late filing.”

Addendum

12. As can be seen in the USM Decision there is no merit in the case, let alone strong merit. There is nothing new today under the light of BOR 2 risk. The appeal, even if allowed to proceed out of time, will have no prospect of success.”

26.  The Board had dismissed the applicant’s appeal against the Director’s 1^st Decision consisting of BOR 3 risk. The applicant has not applied for leave for judicial review of the Board’s 1^st Decision, which has become final. The Board was quite right to say that there is no merit in the case. The Court of Appeal in Kulwinder Kaur v Director of Immigration and Torture Claims Appeal Board/Non-refoulement Claims Petition Office [2022] HKCA 48, 7 January 2022, held:

“59. … upon determining that there is no BOR 3 risk, there is no arguable ground for any BOR 2 risk: see AA v Sweden (2017) 64 EHRR 20 at [52] and [96]; RM v Gerard Paul Muttrie Esq (unrep., HCAL 166/2015, 3 March 2016) at [52].”

27.  As to the applicant’s grounds in support of her application, I shall first refer to the decisions of the Court of Appeal in the following cases.

28.  The Court of Appeal in Re Khan MD Omar [2019] HKCA 803, 19 July 2019 held:

“I8. … …Interpreter services were provided at hearings at every stage. Such services were also available at the time when the applicant was assisted by Duty Lawyer. We do not accept that the alleged lack of language assistance at other time would render the process unfair in the present case.”

29.  The Court of Appeal in Re Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178 held:

“22. This Court has repeatedly held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51 of 2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, and Re Lopchan Subash [2018] HKCA 37. The applicant already had the benefit of legal representation in presenting his case to the Director of Immigration. We do not find anything amiss arising from lack of legal representation in the process before the Board.”

30.  The above Court of Appeal decisions resolve the applicant’s grounds (1), (5) – (9). Ground (2) is a matter of finding of the fact. The Board had given its reasons for believing the Director’s service of the Director’s 2^nd Decision on her. This Court should not interfere with such finding, which seems reasonable under the circumstances. Grounds (3) and (4) will not assist the applicant in view of the Court of Appeal’s decision that her BOR 2 risk will not succeed as her BOR 3 was not successful. The Board is therefore quite right to say that her applicant has no merits.

31.  The applicant fails to show that she has any realistic prospect of success in her proposed judicial review of the Board’s Decision.

CONCLUSION

32.  I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her 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