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Lama Rina v Torture Claims Appeal Board / Non-refoulement Claims Petition Office And Another

Judgment Cited authorities 5 Cited in Precedent Map Related
Vincent
Judgment Date23 April 2021
Neutral Citation[2021] HKCA 547
Year2021
Judgement NumberCAMP140/2020
Subject MatterMiscellaneous Proceedings
CourtCourt of Appeal (Hong Kong)
CAMP140/2020 LAMA RINA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

CAMP 140/2020

[2021] HKCA 547

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 140 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO 1830 OF 2018)

________________________

BETWEEN
Lama Rina Applicant
and
Torture Claims Appeal Board / Non‑Refoulement Claims Petition Office 1st Putative Respondent
Director of Immigration 2nd Putative Respondent

________________________

Before: Hon Kwan VP and Chu JA in Court

Date of Judgment: 23 April 2021

________________________

J U D G M E N T

________________________

Hon Kwan VP (giving the Judgment of the Court):

1. On 19 September 2019, Deputy High Court Judge K W Lung refused to grant an extension of time for the applicant to seek leave to apply for judicial review and dismissed the applicant’s application for leave to seek judicial review of the decisions of the Director of Immigration (“the Director”) and the Torture Claims Appeal Board (“the Board”) concerning her non-refoulement protection claim[1].

2. On 23 September 2019, the applicant filed a summons for leave to appeal against the judge’s decision. The applicant was absent at the hearing of the summons scheduled before the judge on 20 November 2019. The judge dismissed the application for want of prosecution.

3. On 3 December 2019, the applicant filed a summons at the court below to set aside the order and to seek extension of time to appeal against the judge’s decision of 19 September 2019.

4. As court proceedings were generally adjourned since 29 January 2020 for public health reasons, the hearing of the summons scheduled on 31 January 2020 was vacated and re-fixed to 8 April 2020. It was subsequently further adjourned to 14 July 2020. The applicant was absent at the hearing before the judge on 14 July 2020. Her application was dismissed by the judge on 31 July 2020[2].

5. The applicant is a national of Nepal. She is 29 years old. She arrived in Hong Kong on 27 June 2015 as a visitor and subsequently overstayed. She was arrested on 20 July 2015. She raised a non‑refoulement claim on 14 August 2015 on the basis that she would be harmed or killed by people in her village if she is to be returned there as she was accused of witchcraft. She was convicted of using an identify card relating to another person and breach of conditions of stay for taking up unapproved employment and sentenced to fifteen months’ imprisonment.

The Director’s decision

6. By a Notice of Decision dated 20 December 2016, the Director rejected the applicant’s claim on all applicable grounds including BOR 2 risk[3], BOR 3 risk[4], torture risk[5] and persecution risk[6].

The Board’s decision

7. The applicant appealed against the Director’s decision to the Board. She was absent at the hearing scheduled on 6 December 2017. She attended the rescheduled hearing before the Board on 1 February 2018. The Board found that she had fabricated her claim because of the significant inconsistencies of her case. The Board considered that the applicant does not face a real risk of any of the proscribed forms of harm should she return to Nepal and dismissed the appeal on 21 March 2018.

The intended judicial review

8. The applicant filed a Form 86 and an affirmation on 4 September 2018 to seek leave to apply for judicial review against the decisions of the Director and the Board. The application was filed outside the three-month period stipulated under Order 53 rule 4 (1) of the Rules of the High Court (Cap 4A). She put forward the following grounds for her intended challenge:

(1) she did not have language assistance and English is not her mother language;

(2) she was not given any legal assistance in the appeal and leave application;

(3) the content of the Board’s decision was not translated to her and there should be a certified interpreter to read the decision to her;

(4) the Director did not explain how he carried out the balancing exercise when considering the Country of Origin Information (“COI”); and

(5) the content of the hearing bundle was not translated to her.

The judge’s decision

9. DHCJ K W Lung heard the leave application on 13 March 2019. The judge rejected the application concerning the Director’s decision as the decision of the Director 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: Re Moshsin Ali [2018] HKCA 549.

10. As for the application for leave to seek judicial review against the Board’s decision, the applicant acknowledged before the judge that she had no complaint against the adjudicator, she had had a fair hearing before the Board and her friend had explained the Board’s decision to her. The judge considered all of the applicant’s grounds are irrelevant to the finding...

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