Re Khadka Krishna Maya

HCAL 2983/2018

[2022] HKCFI 212

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2983 OF 2018

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Before:  Deputy High Court Judge P. Li in Chambers

Date of Hearing:  29 November 2021

Date of Decision: 25 January 2022

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D E C I S I O N

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1.The applicant is from Nepal. She sneaked into Hong Kong on 25/8/2010. She was arrested by the police on 26/8/2010. She lodged the non-refoulement claim in this case on 23/4/2014 and 24/4/2014.[1]

2.She feared that the Maoist would harm or kill her as her husband had a land dispute with her brother-in-law who was the commander of the Maoists in her home area. Her husband refused to join them. In January 2004, her husband was kidnapped by some Maoists instigated by her brother-in-law. Since then, she and her daughter lived with her brother-in-law.

3.About six months later, she was raped by some Maoists after she refused to join them. Her daughter was also raped on one occasion. She tolerated the abuse to protect her children. She fled to Kathmandu where she was raped by another man who sheltered her family. She finally obtained her passport and leave Nepal in August 2010. Her parents were not harassed by the Maoists.

4.Her non-refoulement claim was rejected on 28/4/2016 and 5/1/2017 by the Director. The appeal was dismissed by the TCAB on 6/12/2018.

5.The adjudicator found that the applicant’s claim, such as the rapes, escalated gradually. These incidents were not mentioned in the previous statements. It was unreasonable that the Maoists would threaten her in the house of her brother-in-law who was the commander. It was inexplicable that she lived with her brother-in-law whom she suspected had kidnapped her husband. Her husband died in 2004 according to the death certificate but her daughter only discovered it in 2016. Maoist insurgence had greatly reduced since 2013 according to some COI.

6.On 27/12/2018, the applicant filed the leave application for judicial review of the TCAB decision. She disagreed with the TCAB.

7.The adjudicator had analyzed the evidence carefully. There were significant discrepancies. Her explanation was not convincing. There was no error of law or procedure. The decision of the TCAB was reasonable. Leave was refused on 22/7/2021.

8.The applicant filed a summons on 9/8/2021 for extension of time to appeal against the decision of this court. She was out of time by 4 days. In her affirmation, the applicant asserted that the mail was late. She did not understand the decision. She needed to seek assistance.

9.She attended a hearing on 29/11/2021. She informed this court that she had married a permanent resident in Hong Kong. She had applied for dependent visa.

10.In considering whether to extend time for appeal, this court will take into account: (1) the length of delay; (2) the reasons for the delay; (3) the merits of the intended judicial review; (4) prejudice to the respondent.[2]

11.According to the court record, the decision was sent to her last known address on 22/7/2021. The applicant had not explained further about the late receipt. The applicant should arrange language assistance herself. There was no duty for this court to provide interpretation services for the decision. In fact, her affirmation was in typewritten English. This showed that she was able to find language assistance. In addition, the prospect of the intended judicial review is also an important factor.

12.As set out in paragraph 5 above, the adjudicator was justified to reject the applicant’s evidence. There were serious discrepancies. I agree with the decision of the TCAB. In my judgment, there is no merit in the intended judicial review.

13.Having considered all relevant factors, I refuse the application for extension of time to appeal.

The applicant was unrepresented.