Khadka Manoj v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
Read the full judgment text of HCAL 550/2017 on BabelCite. This High Court CFI judgment.
1. The applicant is a Nepalese national who arrived in Hong Kong on 27 June 2013 and was permitted to remain for seven days. The applicant did not leave Hong Kong as required and remained here illegally. On 26 October 2013 he was arrested by the police for overstaying, only after that did he lodge a non-refoulement protection claim. That claim was rejected by the Director of Immigration (“Director”) on 29 July 2015 and 17 November 2016. The applicant lodged an appeal/petition with the Tortur
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HCAL550/2017 [2018] HKCFI 1244 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 550 of 2017 BETWEEN
Application for Leave to Apply for Judicial Review Following;
Order by Deputy High Court Judge Woodcock:
Observations for the Applicant (Order by Deputy High Court Judge Woodcock): 1.The applicant is a Nepalese national who arrived in Hong Kong on 27 June 2013 and was permitted to remain for seven days. The applicant did not leave Hong Kong as required and remained here illegally. On 26 October 2013 he was arrested by the police for overstaying, only after that did he lodge a non-refoulement protection claim. That claim was rejected by the Director of Immigration (“Director”) on 29 July 2015 and 17 November 2016. The applicant lodged an appeal/petition with the Torture Claims Appeal Board (“TCAB”) which rejected his appeal on 10 April 2017. 2.The applicant then filed a notice of application for leave to apply for judicial review on 22 August 2017. When the applicant filed his Form 86, he was detained at the Castle Peak Immigration Centre but later on 21 November 2017 he filed a notice of change of address, having been released and moved to premises in Yuen Long. Three days later, this court posted a notice of hearing to the applicant at the address supplied by him, informing him that the oral hearing he requested was set down for 26 January 2018. This notice was posted to the applicant by ordinary and registered post. The registered post letter was returned to the judiciary by the Hong Kong post office because it was unclaimed. The ordinary post was not returned and I will assume it was delivered to the applicant’s address. I have confirmed that the address is identical and no mistake has been made. 3.The applicant was absent at the hearing and the mobile telephone number that the applicant supplied to the court with his application was called that morning but there was no answer. I note from the file that the applicant had applied for legal aid on 19 October 2017 and had been rejected on 28 November 2017. Application refused due to delay 4.The applicant had 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). This application is just under six weeks late. His notice of application does acknowledge the delay and requests an extension of time to apply for judicial review. He gives an explanation in his application and it is repeated in his supporting affirmation. 5.The explanation appears to be that he applied for legal aid on 2 May 2017 but it was rejected on 29 June 2017. In July 2017 the applicant says he asked his welfare officer inside Castle Peak detention centre (whilst he was detained) to assist him in appealing against the refusal of his legal aid application. This request was refused. This does not explain why his Form 86 is late nor does it explain why he did not file his Form 86 at the same time as he made his legal aid application or even after it was refused. The applicant admits that he was aware he could make an application for leave to apply for judicial review and that was the reason he applied for legal aid. 6.In short, his explanation is unsatisfactory and the delay in filing this application is not insignificant. I see no reasonable explanation for the delay. In any event, the merits of the substantive application, after perusal of the papers are, in my view, 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.Despite my refusal to consider his application on the grounds of delay, I did consider the applicant’s affirmation and found no substance in the grounds of this application. The adjudicator’s decision was without fault; she considered and analysed his evidence and claim carefully. It would appear that she accepted his evidence but found that even on his own facts, he was unable to invoke the protection of BOR 2 or BOR 3, unable to show he was at risk of torture and could not prove a persecution risk for the purpose of a non-refoulement protection claim. 8.The adjudicator correctly applied the law and key legal principles to the four grounds open to the applicant. She carefully considered Country of Origin information, the availability of State protection as well as the option of internal relocation. The adjudicator confirmed the decisions of the Director. 9.The applicant’s grounds were weak and without substance or merit. Even if there had been no delay and 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. Dated 11th day of June 2018
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
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