Case Document

100%Judiciary

HCAL1830/2018

[2019] HKCFI 2212

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1830 of 2018

BETWEEN

	Lama Rina	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:

(1) An extension of time for the application for leave to apply for judicial review of the decision of the Torture Claims Appeal Board dated 21 March 2018 be refused; and

(2) Leave to apply for judicial review be dismissed.

It is further directed that:

(1)   If the applicant intends to appeal against the order refusing to extend the period for making the application for leave to apply for judicial review to the Court of Appeal, she must first apply to this court within 14 days of the date of this order by way of summons for leave to appeal;

(2)   When filing the application for leave to appeal, the applicant must at the same time file with the court written submissions of not more than 5 pages in support of the application for leave to appeal;

(3)  The court will thereafter decide whether it is necessary to direct the summons and the written submissions to be served on the putative respondent(s) and whether the application for leave to appeal shall be determined on paper;

(4)  If the court decides that the application for leave to appeal shall be determined on paper, it will proceed to do so without further directions; and

(5)  Liberty to apply.

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 decision of the Adjudicator 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 national of Nepal. She arrived in Hong Kong on 27 June 2015 as a visitor. She was allowed to stay until 28 June 2015. She overstayed and was arrested by the Immigration Department for overstaying without permission and other related offences. She was convicted and was sentenced to a total of 15 months’ imprisonment. On 14 August 2015, she lodged a non-refoulement claim.

3.In her statements given to the Director and the Board, she claimed that if she was to be returned to Nepal, she would be harmed or killed by the people in her village, in particular, Chandra Kala. She was an adopted child of a Nepalese couple in Nepal. After her adoption, the couple had two daughters and one son. In 2014 when she was 23 years of age, a woman called Chandra Kala went to her house and accused her of being witch reincarnate. Chandra had gathered about 500 villagers to surround her house. She was dragged out from her house and was beaten up with fists and kicks. She was also fed with excrement. Her adopted parents were beside the crowd, but they did not stop Chandra. She had sustained bruises, abrasions and some scratches all over her body. Her mouth was bleeding too. She did not report this matter to the police. The second incident took place in early 2015. She had given a candy to another pregnant woman. After taking the candy, the woman felt dizzy and lost her baby. She was accused of causing the miscarriage. The woman gathered about 400 villagers led by Chandra to her house. They beat her up again. She then decided to leave Nepal for Hong Kong.

The Director’s Decision

4.The Director considered her 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 under RC”).

5.By Notice of Decision dated 20 December 2016 (“the Director’s Decision”), the Director rejected her claim for the reason that her claim was not substantiated.

The Board

6.The applicant appealed to the Board and she attended a hearing before the Adjudicator on 6 December 2017 and 1 February 2018 respectively.

7.By Decision dated 21 March 2018 (“the Board’s Decision”), the Board refused her appeal and confirmed the Director’s Decision.

8.The Board considered the applicant’s case, bearing in mind those cautions in assessing the evidence of asylum seekers’ evidence [90 & 91]. The Board found:

“92. … …, and having regard to the internal coherence of her statements, their inconsistency with each other and the relevant level detail she has been able to provide, the Board has formed the view that the Appellant is not a witness of truth and that she has fabricated claims in relation to being accused of witchcraft.

110. Based on the problems set out above, having assessed the Appellant’s claims individually and cumulatively, the Board rejects them in their entirety.

115. … …the Board does not consider that there are substantial grounds for believing the Appellant to be in danger of being subjected to torture if returned to Nepal.”

9.In her Form 86 dated 4 September 2018 under Order 53, rule 4 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 her affirmation in support of her application dated 27 August 2018, the applicant relied upon the following grounds:

a.  she did not obtain assistance on the language as English is not her mother language;

b.  she was not given any legal assistance for this application;

c.  the contents of the Board’s Decision were not translated to her and there should be a certified interpreter to read the decision to her;

d.  the Director did not show how he balancing the information when considering the Country of Origin Information; and

e.  the contents of the Hearing Bundle were not translated to her.

DISCUSSION

The Director’s Decision

11.The Court of Appeal in Re: Moshsin Ali CACV 54/2018, [2018] HKCA 549, 24 August 2018, having considered the relevant statutory provisions of the Immigration Ordinance, Cap 115 in relation to the powers of the Director and the Board, decided:

“45. All of these features persuade us that what is intended by this structure is that the decision by the board will supersede the decision of the immigration officer and will represent the final decision on the claim at the end of its processing. For these reasons we are of the view that the judge was correct to conclude that the decision of the immigration officer is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the board is pursued by a claimant.”

12.The applicant’s application for leave for judicial review of the Director’s Decision therefore fails in limine. I dismiss her application.

The Board’s Decision – application out of time

13.Under Order 53, rule 4(1) RHC, the applicant has to take out her application for leave to make an application for judicial review within 3 months from the date when the grounds for the application first arose.

14.The applicant is out of time for making her application for leave for judicial review of the Board’s Decision (dated 21 March 2018), her application being on 4 September 2018. In accordance with the decision of the Court of Appeal in Kwok Cheuk Kin v Leung Chun Yin [2018] HKCA 419, CACV 110/2017 and CACV 162/2017, 23 July 2018, her application cannot proceed without this Court granting her an extension of time. See §28.

15.The applicant has not made an application for extension of time. She appeared before this Court and said that she did not receive the Board’s Decision. The Board’s Decision was sent to her last known address. She was unable to explain why the Decision did not reach her.

16.The consideration of whether time should be extended for the applicant to take out this application should be the same as held by the Court of Appeal in Khan Mohammad Shadab [2018] HKCA 897, CAMP 75/2018, 1 December 2018, namely, (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted.

17.Even though this Court accepts her explanation of not receiving the Board’s Decision, this Court considers that there is no reasonable chance of success for the intended appeal for the reasons below.

18.The applicant appeared before me. She confirmed that she had no complaint against either the Immigration officer or the Adjudicator. She considered that she had had a fair hearing before the Board. She had asked her friend to explain the Board’s Decision for her.

19.It is obvious that as the Board rejected her evidence in support of her claim. Without the factual foundation, it is impossible for her claim to succeed.

20.All the grounds above are irrelevant to the finding of the facts by the Board. They are also inconsistent with what she said in court. The applicant does not have the absolute right to free legal representation at every stage of the proceedings as was held by the Court of Appeal in Re: Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018 §22.

21.The applicant fails to show that she has a reasonable chance of success in her proposed judicial review.

CONCLUSION

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

23.It is further directed that:

a.  if the applicant intends to appeal against the order refusing to extend the period for making the application for leave to apply for judicial review to the Court of Appeal, she must first apply to this court within 14 days of the date of this order by way of summons for leave to appeal;

b.  when filing the application for leave to appeal, the applicant must at the same time file with the court written submissions of not more than 5 pages in support of the application for leave to appeal;

c.  the court will thereafter decide whether it is necessary to direct the summons and the written submissions to be served on the putative respondents and whether the application for leave to appeal shall be determined on paper;

d.  if the court decides that the application for leave to appeal shall be determined on paper, it will proceed to do so without further directions; and

e.  liberty to apply.

Dated the 19th day of September 2019

	(Thomas WAN)
	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 19/09/2019 Lama Rina 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 19/09/2019 Torture Claims Appeal Board/Non-refoulement Claims Petition Office 1^st Putative Respondent’s ref. no.: USM 5731/17/1/15/N330 The Director of Immigration 2^nd Putative Respondent’s ref. no.: QA T/C 1429/16 (Formerly RBCZ 13534/15) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)