Khadka Jina v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
Read the full judgment text of HCAL 726/2019 on BabelCite. This High Court CFI judgment was delivered on 19 May 2022.
1. The applicant applies for leave to apply for judicial review of the Decision dated 1 February 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). The applicant had also included the Director’s Decision dated 11 April 2018 and the Non-refoulement Claim Form dated 12 March 2018, which is not subject to judicial review. The Director’s Decision had been dealt with by the Board’s Decision and is therefore not amenable to judicial review. See Re:
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HCAL 726/2019 [2022] HKCFI 1342 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 726 of 2019
Application for Leave to Apply for Judicial Review NOTIFICATION of the Judge’s decision (Ord. 53 r. 3) Following;
Order by Deputy High Court Judge K.W. Lung: 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 Decision dated 1 February 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). The applicant had also included the Director’s Decision dated 11 April 2018 and the Non-refoulement Claim Form dated 12 March 2018, which is not subject to judicial review. The Director’s Decision had been dealt with by the Board’s Decision and is therefore not amenable to judicial review. See Re: Moshsin Ali [2018] HKCA 549, §45[1]. 2.The applicant requested an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), a hearing was fixed for her. However, due to COVID-19, the hearing has to be adjourned. The Court therefore wrote to the applicant asking her to make written submissions unless she takes the view that an oral hearing cannot serve the purpose. She did not respond to the Court’s letter. 3.Under Order 53 rule 3(3) of the RHC, it provides:
Under Order 1A rule 1(b) of the RHC, the underlying objectives of the rules are to ensure that a case is dealt with as expeditiously as is reasonably practicable. Under Order 1B rule 1(l), the court has the power to take steps to make any order for the purpose of managing the case and furthering the underlying objectives set out in Order 1A. I consider that the court has the power to dispense with open hearing of the applicant’s application without doing injustice to her application. I therefore proceed to consider her application on paper. 4.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the Board is the proposed respondent and the Director of Immigration (“the Director”) is the interested party. The applicant 5.The applicant is a national of Nepal. She came to Hong Kong as a visitor and was permitted to stay until 8 January 2016. She overstayed and surrendered to the Immigration Department on 28 November 2016 where she lodged a non-refoulement claim. She claimed that, if refoulement, she would be harmed or killed by the Maoists. 6.According to the applicant, her father disappeared and she was told that he was kidnapped and killed by the Maoists. The Maoists demanded money from her mother. Her mother gave them some money, but they demanded more. When she was 14 years old, the applicant was arranged to marry a man who was 10 years older than she. In 2006, her husband divorced her for another woman. In 2007, her mother told her that the Maoists were still pressing her for money. She confronted with the Maoists and asked them why they demanded money from her mother. They threatened her and demanded money from her mother and herself. Her mother advised her not to report the matter to police and she should leave Nepal. She moved to live in India between 2009 to 2015. However, she still received threatening calls from the Maoists. Her mother advised her to leave Nepal. On 6 January 2016, she left Nepal for Hong Kong. The next day, she was in China, from where came to Hong Kong. The Director’s Decision 7.The Director considered her application in relation to the following risks:
8.By a Notice of Decision dated 11 April 2018 (“the Director’s Decision”), the Director refused her claim for the reason that it was not substantiated. The Director found that there was no substantial ground for believing that she would be harmed or killed by the Maoists upon refoulement [13-16]; that state protection would be available to her [17] and that internal relocation was an option open to her [18-22]. The Board’s Decision 9.The applicant appealed the Director’s Decision to the Board. On 4 December 2018, the Board conducted an oral hearing for her case. 10.According to the Board’s Decision, after explaining the purpose of the oral hearing, the applicant said, “I don’t have anything to say.” 11.Having considered the applicant’s evidence, the Board found that there was no merit in her application and the facts on which she relied to support her claim were not credible. The Board had given its reasons in paragraph 21. Of those reasons, the Board found that the applicant was not afraid of the Maoists as she confronted them when they demanded money from her mother. She had lived in India for 7 years and returned to Nepal to visit her mother four times. There was no reason for the Maoists to know her phone numbers in India. She did not seek asylum immediately after arriving in Hong Kong. It further found that state protection was available to her [25-27] and internal relocation was an option open to her [45-47]. The Board dismissed her appeal. Application for leave to apply for judicial review of the Board’s Decision 12.The applicant has filed Form 86 dated 15 March 2019 for leave to apply for judicial review of the Board’s Decision. 13.In her affirmation in support of her application, the applicant set out the reasons, which I shall summarize as follows:
DISCUSSION 14.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its 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 CA, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1). 15.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 that she had had a fair hearing before the Board and she had nothing to say. 16.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:
17.The grounds in paragraph 13 above do not assist her application. 18.The Court of Appeal in Re Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018 held that the appeal court held that the applicant is not entitled to free legal representation at every stage of the proceedings as she had already had duty lawyer’s service at the screening stage [22]. The Court of Appeal in Re Khan MD Omar [2019] HKCA 803, 19 July 2019 at §18 held: “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.” Therefore, grounds (1), (2) (3) and (6) fail. 19.Ground (4) fails as it is clearly contrary to the fact. The adjudicator had explained the purpose of the hearing. She told him that she did not have anything to say. The Board found the facts by considering her evidence on paper and came to its conclusions with reasons, which are clear and sufficient. 20.Ground (5) also fails as she is not allowed to revisit her appeal at the Court. In Re: Moshsin Ali, [2018] HKCA 549, the Court of Appeal held “45. … 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. … 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.”. There is no exceptional circumstance in this case. Therefore, there is no legal basis for her to apply for leave to have judicial review of the Director’s Decision. 21.The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational. 22.The applicant fails to show that she has any realistic prospect of success in her proposed judicial review. CONCLUSION 23.I refuse to grant leave for the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application. Dated the 19th day of May 2022
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 [1] “45. … 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. … 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.” |
Cases cited in this judgment