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Re Dhimal Kamala

Judgment Cited authorities 20 Cited in 1 Precedent Map Related
Vincent
Judgment Date28 September 2018
Neutral Citation[2018] HKCA 644
Year2018
Judgement NumberCACV196/2018
Subject MatterCivil Appeal
CourtCourt of Appeal (Hong Kong)
CACV196/2018 RE DHIMAL KAMALA

CACV 196/2018

[2018] HKCA 634

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 196 OF 2018

(ON APPEAL FROM HCAL 539/2017)

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RE: DHIMAL KAMALA Applicant

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Before: Hon Chu JA and Barma JA in Court

Date of Hearing: 20 September 2018

Date of Handing Down Judgment: 28 September 2018

___________________

J U D G M E N T

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Hon Barma JA (giving the Judgment of the Court):

1. This is an appeal against the decision of Deputy High Court Judge Woodcock given on 24 May 2018 refusing leave to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office dated 26 July 2017 dismissing the applicant’s appeal against the decisions of the Director of Immigration dated 20 April 2016 and 14 June 2017 rejecting the applicant’s non-refoulement claim.

Background

2. The applicant is a national of Nepal. She entered Hong Kong on 30 June 2010 to work as a domestic helper with permission to remain until 1 April 2012. She overstayed and surrendered to the Immigration Department on 30 July 2014. She lodged a non-refoulement claim on the same day.

3. The applicant’s claim was based on the risk of harm from the Maoists and the Nepalese government. According to the applicant, the Maoists asked her to join their party when she was around 17 years old but she refused. The Maoists made verbal threats to her, although they did not attack her. The applicant was also afraid that the Nepalese government would consider her a Maoist. Additionally, she is concerned that she will be harassed or mistreated because she is now a Christian, and Nepal is a Hindu majority country.

4. By a Notice of Decision dated 20 April 2016 (“the Director’s First Decision”), the Director decided against the applicant’s claim. The Director’s Decision covered the BOR 3 risk[1], the persecution risk[2], and the torture risk[3].

5. By a Notice of Further Decision dated 14 June 2017, the Director also assessed the applicant’s claim based on the BOR 2 risk[4], and decided against her.

6. The applicant appealed to the Torture Claims Appeal Board. After a hearing on 22 June 2017, the Board dismissed the appeal on 26 July 2017 (“Board’s Decision”).

7. At [15] and [24] of the Board’s Decision, the Board held that “there are no substantial grounds for believing that the applicant would be subject to severe pain and suffering on her return to Nepal, whether mental or physical”. The Board was also satisfied at [16] that state protection was available for the applicant and at [17] that internal relocation was viable.

The deputy judge’s decision

8. The applicant filed a Form 86 on 22 August 2017. The Form 86 contained no ground for seeking relief.

9. In the affirmation in support of the leave application dated 22 August 2017, the applicant advanced the following grounds for judicial review:

(1) lack of legal representation before the Board/miscarriage of justice;

(2) lack of language assistance/procedural unfairness; and

(3) wrongful exercise of case management/error of law.

10. After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the judge refused to give leave to apply for judicial review. The judge gave the following reasons at paragraphs 9 to 18 of the CALL-1 form:

“9. The applicant has wrongly proposed both the Director and the TCAB as respondents as well as interested parties in her Form 86. However, there are no grounds against the Director in her affirmation.

10. In any event, I take the view that the proper approach should be that this application for leave to apply for judicial review is sought against the decision of the TCAB only. The applicant has already utilised the channel of appealing the Director’s decision to the TCAB. The TCAB treated the appeal/petition as a de novo hearing or rehearing. The applicant would have covered all mistakes she says the Director made in her appeal to the TCAB. Anyway, the TCAB would have looked at it to ensure no errors as it treated her appeal/petition as a rehearing. To seek to judicial review both decisions is not the right course of action to take; there is no room for a judicial review of the decision of the Director as well unless in very specific circumstances. Those circumstances do not arise here.

11. I have considered with rigourous examination and anxious scrutiny the papers and grounds of this application as well as the submissions made by the applicant. The supporting affirmation lists the following as grounds for seeking leave:

(1) lack of legal representation before TCAB/miscarriage of justice;

(2) lack of language assistance/procedural unfairness; and

(3) wrongful exercise of case management/error of law.

12. The first ground is a complaint by the applicant she was not provided with legal representation for her appeal/petition nor to assist her with the further determination by the Director of the BOR 2 risk. The court was reminded that a ‘high standard of fairness’ should be maintained but legal representation for this applicant only extended to the claim process before the Director. Once the Director dismissed her claim the applicant received no further free legal advice or assistance. The applicant submits this is a ‘violation of the principle of achieving high standard of fairness and should be considered a miscarriage of justice’.

13. It is clear that where the applicant’s fundamental human right not to be subjected to torture is involved, it has been held ‘high standards of fairness’ must be observed by the decision-maker when making the relevant administrative decision, see Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187, para 44. That frequently referred to standard applies to the assessment undertaken by a decision-maker of a torture claim. That approach for the adjudicator is paramount and cannot be stressed enough. However, the applicant here has taken it out of context by implying it should mean and include the automatic provision of legal representation to her beyond what was provided by the duty lawyer scheme to her. I do not agree, the fact that it is not automatic cannot be defined as a miscarriage of justice. The duty lawyer scheme will continue to represent applicants in their appeals if they are of the view there is merit in their cases. Their assessment is on a case by case basis.

14. The fact the applicant was unrepresented in her appeal has not been shown to be procedurally unfair. The applicant said herself at the hearing that she did not approach the duty lawyer scheme and ask for help with her appeal. She dealt with the appeal herself. She can hardly complain when she did not ask for help. There is no merit in this...

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1 cases
  • Re Dhimal Kamala
    • Hong Kong
    • Court of Appeal (Hong Kong)
    • 30 Noviembre 2018
    ...(Carlye Chu) (Aarif Barma) (Jeremy Poon) Justice of Appeal Justice of Appeal Justice of Appeal The applicant acting in person [1] See [2018] HKCA 644 ...

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