Case Detail

HCAL 1283/2019

[2024] HKCFI 2774

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1283 OF 2019

_____________

BETWEEN
	Ale Bishnu Kumari	Applicant
	and
	Torture Claims Appeal Board / Non-refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative
		Interested Party

_____________

Before:

Deputy High Court Judge K.W. Lung in Chambers

Date of Decision:

24 October 2024

________________

D E C I S I O N

________________

THE APPLICATION

1. The applicant is an illegal immigrant by staying in Hong Kong without permission and she lodged a non-refoulement claim with the Director of Immigration (“the Director”). The Director rejected her application and she appealed to the Torture Claims Appeal Board (“the Board”). Having considered her evidence, the Board, by its Decision (“the Board’s Decision”), rejected her appeal and affirmed the Director’s Decision.

2. Pursuant to Order 53, rule 3(2) of the Rules of the High Court (“RHC”), the applicant filed Form No. 86 to apply for leave to apply for judicial review of the Board’s Decision.

3. By Order dated 29 April 2024 (“the Court’s decision”), the Court dismissed her application for the reason that there was no realistic prospect of success in her intended application.

4. The Court’s decision was sent to the applicant on 29 April 2024 without being returned by the Post Office. She was deemed to receive the Court’s decision.[1]

5. The deadline for her to file her notice of appeal is 13 May 2024.

6. In her summon filed on 2 October 2024, the applicant asked for extension of time to file her notice of appeal. In her affirmation in support of her application, the applicant said she did not receive the Court’s decision within reasonable time.

7. Her application for appeal is late for more than 4 months.

Discussion

8. Pursuant to Order 32, rule 11 and 11A and Order 53, rule 3(3) of the RHC, having considered the applicant’s reason, I decide to determine this application on paper without an oral hearing[2].

9. The Court shall consider the factors as set out in AW v. Director of Immigration and William Lam [2016] 2 HKC 393 at para. 27(3) in considering if extension of time should be extended: (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.

10. I shall consider the merits of her case.

11. In Re Adumekwe Rowland Ejike[2019] HKCA 702, the Court of Appeal held:

“19. The prospect of success of the intended appeal is important: the court will not grant extension for a hopeless appeal to be pursued, see Re Rahman Wasif[2019] HKCA 299 at [13]; Re Kpamou Gbotoi Bernard[2019] HKCA 168; and Re Irshad Muhammad[2018] HKCA 864 at [16].”

12. The applicant’s claim was based upon her allegation that if refouled, she would be harmed or killed by her friend, Pradeep Thapa, due to an outstanding loan.

13. The Director rejected her application for the reason that her claim was not substantiated. She appealed to the Board.

14. The Board disbelieved her evidence, and found that she failed to substantiate each of the applicable risks.

15. The applicant has raised no valid ground to challenge the Board’s finding of the facts.

16. There is no realistic prospect of success in her intended appeal.

17. In the circumstances, I refuse to extend time for her appeal. Accordingly, I dismiss her application.

(K.W. Lung)
Deputy High Court Judge

The applicant was unrepresented.

[1] Re: Ravinder Singh[2023] HKCA 604, Hon Poon CJHC and Cheung JA, 28 April 2023

“17. … According to the Court’s record, the Court’s decision was sent to the applicant’s last known address on 31 March 2022 by ordinary post. He was deemed to receive the same on the next following day, not being a specified day such as a Saturday or a general holiday. …”

[2] Ogbozor Tochukwu Eugene v Torture Claims Appeal Board/Non-refoulement Claims Petition Office and Director of Immigration[2022] HKCA 607, Hon Kwan VP and G Lam JA, 6 May 2022:

“16. … … In respect of his complaint of no oral hearing, the judge is entitled to decide the matter on paper pursuant to the Order 32, rules 11 and 11A and Order 53 rule 3(3) of the Rules of the High Court.”

HCAL 1283/2019

[2024] HKCFI 1012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1283 of 2019

BETWEEN
	Ale Bishnu Kumari	Applicant
	and
	Torture Claims Appeal Board/ Non-refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative
		Interested Party

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

consideration of documents only; or
consideration of documents and Applicant being absent in open court;

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 8 May 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissing the applicant’s appeal against the Director’s Decision as described below (“the Board’s Decision”).

2. The applicant did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court, I shall deal with her application on paper.

3. Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

4. The applicant is a national of Nepal. She was arrested by police on 16 November 2009 and upon investigation, she admitted to have illegally entered Hong Kong via Mainland China in August 2009. She lodged a torture claim on 16 January 2010, which was rejected by the Director on 19 April 2013. Upon implementation of the Unified Screening Mechanism (“USM”), she lodged a non-refoulement claim on 18 February 2013 on the basis that she would be harmed or killed by her friend, Pradeep Thapa, due to an outstanding loan.

5. In short, the applicant borrowed 100,000 Nepalese Rupees in 1992 from Pradeep for building and maintaining a house, with the loan bearing an interest rate at 2% and a requirement to repay the loan within a year. However, she was unable to repay the loan and about a year later in 1993, Pradeep began making repayment demands and death threats on the phone. This continued from 1993 to 2009, and near the end of this period, she relocated to her relative’s home. She did not encounter any issues while in hiding. Thereafter, she arranged to leave Nepal and departed for Hong Kong. Details of her claim are set out at [12] of the Notice of Decision dated 24 September 2018 by the Director (the “Director’s Decision”). In light of her previous torture claim, the Director assessed her non-refoulement claim on all applicable grounds other than Torture risk[1].

The Director’s Decision

6. The Director considered the applicant’s claim in relation to the following risks:

a.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);
b.  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
c.  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”).

7. By way of the Director’s Decision, the Director dismissed the applicant’s claim. In elaboration, the Director found that: (i) there was no evidence to show that Pradeep had any real intention to seriously harm the applicant, let alone kill her [18]; (ii) despite the death threats, she was able to live safely in Nepal for some 16 years before departing for Mainland China, which indicated there was no intention for Pradeep to carry out his threats given the lapse of time [19]; (iii) state protection was available which further lowered or negated the perceived level of risk [22] – [24]; and (iv) internal relocation alternative was available and reasonable [25] – [31].

The Board’s Decision

8. The applicant appealed the Director’s Decision to the Board. On 22 February 2019, the Board conducted an oral hearing for her appeal, during which she elected to give evidence.

9. In essence, the Board was not satisfied that the applicant’s claim was credible as it had great difficulty in accepting that she was unable to recall important details of the loan at the hearing (eg. when she borrowed the funds or the amount borrowed) [28]. The Board went further that even if the loan was accepted, the fact that Pradeep had not done anything to harm her or her family in any way since the loan was taken out more than two decades ago, was seen as incredible [29]. In assessing the relevant grounds of non-refoulement protection, the Board found she had failed to substantiate each of the applicable risks [37] – [40].

10. For the above reasons, the Board dismissed the applicant’s appeal and confirmed the Director’s Decision.

Application for leave to apply for judicial review of the Board’s Decision

11. On 14 May 2019, the applicant filed Form 86 for leave to apply for judicial review of the Board’s Decision.

12. The applicant has filed an affirmation, in which she said:

“I would like to reject and set aside the decision made by Immigration Department. They disregarded the danger and threat I have in my country should I be deported.”

DISCUSSION

13. 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, §40 and Nupur Mst v Director of Immigration[2018] HKCA 524, §14 (1).

14. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

15. In Re: Kartini[2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

16. The Board had, for the reasons given in paragraph 9 above, found that the applicant is not subjected to any real risk of harm if she returns to Nepal. The ground in paragraph 12 above is not valid to challenge the Board’s Decision.

17. There is no reason that the Court should interfere with the Board’s Decision.

18. The applicant fails to show that she has any realistic prospect of success in her proposed judicial review.

CONCLUSION

19. 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 29^th day of April 2024

(M.O. WONG)(Ms)
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 29/4/2024 Ale Bishnu Kumari 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 29/4/2024 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 13750/18/10/92/N557 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 3080/18 (Formerly RBCZ 2000493/14) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)

Form CALL-1

[1] risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115

ALE BISHNU KUMARI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

Related cases with same parties

Files (2)

	consideration of documents only; or
	consideration of documents and Applicant being absent in open court;