Case Document

100%Judiciary

HCAL1586/2018

[2019] HKCFI 1779

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1586 of 2018

BETWEEN

	Thing Bijay	Applicant
	and
	Torture Claims Appeal Board/ Non-refoulement Claims Petition Office	1^st Putative Respondent
	The Director of Immigration	2^nd Putative Respondent

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 the Applicant in open court;

Order by Deputy High Court Judge K.W. Lung:

Leave to apply for Judicial Review be refused.

Observations for the Applicant (Order by Deputy High Court Judge K.W. Lung):

THE APPLICATION

1.This is the applicant’s application for leave to apply for judicial review against the respective decisions of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) and the Director of Immigration (“the Director”).

The applicant

2.The applicant is a Nepali national. He arrived in Hong Kong on 24 September 2015 as a visitor and was allowed to stay until 29 September 2015. He overstayed without the Director’s permission and was arrested by police on 29 October 2015. He was referred to the Immigration Department for further investigation on 30 October 2015. He lodged a non-refoulement claim on 9 November 2015.

3.In his statements given to the Director and the Board, he claimed that he was in fear of being killed by Maoist if he returned to Nepal because he converted from the Communist Party of Nepal (Maoists) (“CPNM”) to the Congress Party in 2013. Because of his conversion, he was abused by members of the CPNM from time to time. He was threatened by the CPMN members. He decided to flee to Hong Kong, leaving his wife in Nepal. His wife told him that the CPMN people were still looking for him.

The Director’s Decision

4.The Director considered his application in relation to the following risks:

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

b. Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 (Risk of violation of the right to life) (“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”).

5.By Notice of Decision dated 26 October 2017 (“the Director’s Decision”), the Director rejected his claim for the reason that it was not substantiated.

The Board

6.The applicant appealed to the Board and he attended a hearing before the Adjudicator on 20 April 2018.

7.By Decision dated 26 July 2018 (“the Board’s Decision”), the Board rejected his appeal and confirmed the Director’s Decision.

8.The Board had considered the applicant’s case and found:

“23. … …His account contained absolutely fundamental and central discrepancies, which went to the heart of the matter and fatally undermined his credibility. When asked to explain these serious difficulties, the appellant had nothing to say. I have therefore reached the undoubted conclusion that no credence whatsoever can be attached to any of the appellant’s claims and that his assertions are fabricated.”

Application for leave to apply for judicial review

9.In his Form 86 dated 9 August 2018, under Order 53, rule 3(2) of the Rules of the High Court, the applicant applied for leave for judicial review of the Director’s Decision and the Board’s Decision respectively.

10.In his affirmation in support of his application dated 9 August 2018, the applicant relied upon the following grounds:

(1)   the hearing bundle was given to him in English without translation for him;

(2)   he did not have legal assistance for his appeal;

(3)   he was not legally represented for the appeal; and

(4)   he was not having legal assistance for this application.

DISCUSSION

The Director’s Decision

11.In my view, the applicant is not entitled to apply for judicial review of the Director’s Decision without exceptional circumstances. In Haider Zeeshan v Torture Claims Appeal Board/Non-refoulement Claims Petition Office and The Director of Immigration [2018] HKCFI 2647, HCAL 806/2018, 5 December 2018, I had held that the applicant, without exceptional circumstances, is not entitled to apply for judicial review of the Director’s Decision because the Board has been established by legislation to deal with appeals against the Director’s Decision and this Board has wider power than this Court to make investigations in the matter. The Board had considered his appeal and made its Decision.

12.The applicant is not entitled to apply for judicial review of the Director’s Decision as held by the Court of Appeal in Re: Moshsin Ali CACV 54/2018, [2018] HKCA 549, 24 August 2018 [45]. The Board’s Decision is final [42].

13.Since the applicant has not set out any exceptional circumstances, his application for leave simply fails in limine.

14.For the reasons above, I dismiss the applicant’s application for leave for judicial review of the Director’s Decision.

The Board’s Decision

15.The applicant appeared before me. He confirmed that before the appeal hearing, the interpreter had explained the hearing bundle to him. He had no difficulty in the appeal hearing and he had had a fair hearing before the Board.

16.I put the Board’s comments in paragraph 8 above to him for his comments. He said that he had no comments on them.

17.Grounds (1) has no relevance in light of what he said before this court. It fails.

18.Grounds (2) to (4) fail in light of the Court of Appeal’s decision in Re: Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018 that the applicant was legally represented at the screening stage and the applicant does not have the absolute right of free legal representation at every stage of the proceedings.

19.The applicant fails to show that he has a reasonable chance of success in his proposed judicial review.

CONCLUSION

20.Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant him leave to apply for judicial review. Accordingly, I dismiss his application.

Dated the 17^th day of July 2019

	(Henry Ng)
	for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or the Applicant’s solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 17/7/2019 Thing Bijay Applicant’s ref. no: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 17/7/2019 Torture Claims Appeal Board/Non-refoulement Claims Petition Office 1^st Putative Respondent’s ref. no.: USM 9056/17/11/67/N392 The Director of Immigration 2^nd Putative Respondent’s ref. no.: QA T/C 2334/17 (formerly RBCZ 14222/15) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)