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Re Guna Kumari Magar

Judgment Cited authorities 10 Cited in 2 Precedent Map Related
Vincent
Judgment Date15 November 2018
Neutral Citation[2018] HKCA 842
Judgement NumberCACV260/2018
Subject MatterCivil Appeal
CourtCourt of Appeal (Hong Kong)
CACV260/2018 RE GUNA KUMARI MAGAR

CACV 260/2018

[2018] HKCA 842

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 260OF 2018

(ON APPEAL FROM HCAL 998/2017)

________________________

RE: Guna Kumari Magar Applicant

________________________

Before: Hon Lam VP and Yuen JA in Court
Date of Hearing: 13 November 2018
Date of Judgment: 15 November 2018

___________________

JUDGMENT

___________________

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

1. This is an appeal from the decision of Deputy High Court Judge Bruno Chan dated 8 June 2018 ([2018] HKCFI 1236) refusing to grant leave to the applicant to apply for judicial review.

Background

2. The applicant is a national of Nepal. She arrived in Hong Kong on 24 June 2004 with permission to remain as a foreign domestic helper. Her employment was terminated on 6 February 2006 and she was required to depart on or before 20 February 2006. She overstayed illegally and had not surrendered to the police until almost three years and nine months later, on 16 November 2009. She lodged her torture claim on 19 November 2009, which was refused by the Director of Immigration on 30 November 2011. Her petition against the director’s decision was rejected by an Adjudicator (Torture Petition) on 21 December 2011. The applicant lodged another claim for non-refoulement protection on applicable grounds other than the torture risk[1] on 22 April 2014.

3. The applicant’s claim was based on her alleged fear that, if returned to Nepal, she would be harmed or even killed by a group of Maoists because she repeatedly refused to join them in 2003 and 2004. The factual background was summarized in [2] – [3] of the Decision of the judge set out in the CALL-1 form.

4. The director assessed the applicant’s BOR 3 risk[2], the persecution risk[3], and the BOR 2 risk[4]. By two notices of decision dated 21 March 2016 and 24 March 2017 respectively, the director determined the said risks against the applicant and rejected her non-refoulement claim.

5. The applicant petitioned to an adjudicator of the Non-Refoulement Claims Petition Office against the director’s decisions. An oral hearing was held on 13 April 2017, during which the applicant elected to answer questions put by the adjudicator. Having considered the relevant country of origin information (“COI”), the adjudicator found that, in light of the Comprehensive Peace Agreement entered between the Nepalese Government and the Maoist party in 2006, the Maoists had no more initiative to oppress people to join them. The adjudicator also did not accept that the Maoist group would still be interested in locating the applicant after 13 years, and would be able to search for her given that the applicant was able to stay in Kathmandu safely for three months back in 2004. It was also found that state protection was available to the applicant and internal relocation was a viable option for her. Since the applicant had never suffered any severe injury, the adjudicator found no substantial ground for believing that she would face a future risk of serious harm. Moreover, the adjudicator also found that the petition would fail on the ground of lack of credibility. Having heard the applicant during the oral hearing, the adjudicator found it inexplicable that she had waited for five and a half years after her last arrival to lodge her torture claim. The petition was dismissed on 21 November 2017.

The judge’s decision

6. On 1 December 2017, the applicant applied to the court for leave to apply for judicial review. The intended application was in respect of the adjudicator’s decision. While the form 86 contained no grounds for seeking reliefs, the applicant advanced the following grounds in her affirmation in supporting of the application:

(a) she was not given legal representation in her petition to the adjudicator;

(b) she was not given a translated copy of her Non-Refoulement Claim Form;

(c) the adjudicator had given undue weight to the COI relating to the Comprehensive Peace Agreement entered in 2006; and

(d) the adjudicator excused the attendance of the director at the oral hearing, rendering the hearing unfair.

7. The judge held an oral hearing on 18 April 2018. After hearing her, the judge refused to grant leave to the applicant to apply for judicial review. His reasons for refusing leave were set out in [10] – [16] of the CALL-1 form as follows:

“ 10. For her ground (1) of not being provided with legal representation in her appeal before the Board, the Court of Appeal has already held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51/2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: see Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 37, and Re Zafar Muazam [2018] HKCA 176.

11. The applicant already had the benefit of legal representation in presenting her case to the Director, and was able to testify and make representation in her appeal before the Board and to answer questions put to her by the adjudicator without difficulty, as well as in her leave application for judicial review before me when it is clear that she was capable of making representation about her claim, and I do not find anything amiss arising from the lack of legal representation in her appeal process before the Board.

12. As for her complaint in ground (2) of not being provided with the translation of her NCF so that she could find out if the...

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2 cases
  • Re Haider Sufyan
    • Hong Kong
    • Court of Appeal (Hong Kong)
    • 10 January 2019
    ...in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Litoun Mounsy [2018] HKCA 537 at [11]; and Re Guna Kumari Magar [2018] HKCA 842 at [12], the assessment of evidence, COI materials, risk of harm, availability of state protection, and viability of internal relocation are pri......
  • Re Guna Kumari Magar
    • Hong Kong
    • Court of Appeal (Hong Kong)
    • 22 February 2019
    ...J U D G M E N T ___________________ Hon Lam VP (giving the Judgment of the Court): 1. By a judgment dated 15 November 2018 (published as [2018] HKCA 842), the Court (Lam VP and Yuen JA) dismissed the applicant’s appeal from the decision of Deputy High Court Judge Bruno Chan dated 8 June 201......

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