Rai Samjhana v. Immigration Tribunal

HCAL 1168/2023

[2023] HKCFI 2158

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1168 OF 2023

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BETWEEN

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D E C I S I O N

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A. Introduction

1.The Applicant is a Nepalese national who came to Hong Kong for employment as a domestic helper.  She arrived on 20 November 2003, and was permitted to remain until 20 November 2005 or two weeks after termination of contract, whichever was earlier.

2.On 10 March 2004, her condition of stay was varied to visitor and she was last permitted to remain until 7 June 2004. However, she did not depart, and she has been overstaying in Hong Kong since 8 June 2004.

3.She surrendered herself to the Immigration Department on 14 July 2021.

4.On 7 March 2023, a Removal Order was issued against her pursuant to section 19(1)(b)  of the Immigration Ordinance Cap 115 (“Ordinance”).

5.The Applicant appealed to the Immigration Tribunal by a “Notice of Appeal Against Removal” dated 24 March 2023.

6.Her “Notice of Appeal Against Removal”, however, set out matters which resemble an appeal from a failed torture or non-refoulement claim.  She said:

(1)  The Immigration failed to consider the real risk of harm I face if I return to Nepal.  The fact that I have not faced any harm till date is because I have not returned to Nepal.

(2)  The Immigration have made a mere assumption that the harm I may face would be minimum level of severity.

(3)  The Immigration failed to realise that it is obvious that my creditor would cause no harm to my sister as it is me who borrowed the money from the creditor, not her.

(4)  The Immigration failed to appreciate the level of corruption that takes place in Nepal and the fact that with the amount of money and power my creditor has it is impossible for me to remain safe anywhere in Nepal.

(5)  I got married in Hong Kong on 3^rd January 2022 with a Hong Kong permanent resident and I have applied my Entry Dependent Visa which is actively under process with your esteemed Other Visas and Permits Section.

7.The Tribunal dismissed her appeal without a hearing by a “Notice of Dismissal of an Appeal Determined by the Tribunal under Section 53C” dated 18 April 2023 (“Section 53C Notice”). Materially, the Section 53C Notice stated:

The Tribunal has examined your written notice of appeal and is satisfied that the factual matters on which you are seeking to rely are not matters which would entitle you to succeed in the appeal.  Accordingly, the appeal has been dismissed without a hearing.

8.By a Form 86 filed on 11 July 2023, the Applicant sought leave to apply for judicial review so as to challenge the Tribunal’s Section 53C Notice.

9.Having considered all the materials before the Court, I am of the view that this matter can appropriately be dealt with on paper.

10.This is my Decision.

B.  No Merits in the Intended Review

11.No proposed grounds are set out in the Form 86.

12.In the supporting affirmation, the Applicant merely stated “I want to judicial review the refusal decision of the appeal of the immigration Tribunal.  This decision is unfair and unreasonable”, but without explaining why that might be so.

13.Other than the Section 53C Notice and the Notice of Appeal Against Removal, she also exhibited to her supporting affirmation the original Removal Order annexing a “Summary of Facts and Reasons for Removal”, and her recognizance form.

14.RHC Order 53 rule 3(2)(a)(iii)  requires an applicant to set out her grounds of review in the Form 86.  The reference in the supporting affirmation that the Tribunal’s decision is “unfair and unreasonable” is but a bare assertion with no attempt to substantiate it at all.  I do not think that the Order 53 requirement could be met by inserting on the Form 86 a general allegation that the impugned decision is unfair and unreasonable, but without any further details whatsoever.

15.The duty falls on the applicant to make good her leave application by identifying some reasonably arguable grounds.  An applicant cannot simply make reference to a general phrase and then expect the Court to plough through the documents to come up with the necessary grounds for her.  This is not the function of the judicial review Court.

16.The Applicant’s application is, therefore, liable to be dismissed on that basis alone.

17.In any event, the documents provided by the Applicant to the Court do not seem to me to disclose any argument concerning the reasonableness or fairness of the Section 53C Notice which might give rise to any ground of review with a reasonable prospect of success.

18.The Director plainly had such power to make the Removal Order under section 19(1)(b)  of the Ordinance. Section 19(1)(b)  authorises a removal order to be made against a person who has remained in Hong Kong without the permission of the Director when such permission is needed.  The Applicant is evidently such a person.

19.The ultimate basis of her complaints as stated in the Notice of Appeal Against Removal was that she might face harm if she were to be returned to Nepal.  I am not told whether she has an on-going non-refoulement claim (“NRC”), the existence of which might have a bearing on the government’s decision not to execute a removal order by actually removing her, see for example section 37Z which prohibits the removal of a person who has an on-going torture claim from Hong Kong to a risk state.  But the intended subject of challenge is the Removal Order, not a decision to execute that order, and any NRC would be a separate matter.

20.Therefore, I think there is nothing arguably unreasonable in the public law sense for the Tribunal to take the view that the Applicant’s appeal could be dismissed without a hearing.

C.  Result

21.The application is dismissed, with no order as to costs.

The applicant, acting in person