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CACV 225/2017
[2018] HKCA 37
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 225 OF 2017
(ON APPEAL FROM HCAL NO 148 of 2017)
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| RE: |
Lopchan Subash |
Applicant |
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Before: Hon Cheung CJHC and Lam VP in Court
Date of Hearing: 18 January 2018
Date of Judgment: 22 January 2018
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JUDGMENT
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Hon Lam VP (giving the Judgment of the Court):
1. This is an appeal against the decision of Deputy High Court Judge Woodcock on 29 September 2017 refusing leave to the applicant to apply for judicial review. The applicant, a man of Nepali origin, came to Hong Kong on 17 May 2014 as a visitor and overstayed beyond the permission granted by the Director of Immigration. He was arrested on 21 May 2014. On 23 May 2014 he lodged a non-refoulement claim. The claim was based on alleged threats from Maoists in his native village in Jutpani, Chitwan of Nepal due to his support of the Nepali Congress Party. He alleged there had been 4 incidents of attacks in 2013 before he fled to stay with his uncle at Kathmandu. After staying there for 7 months without subject to further hostilities, he came to Hong Kong.
2. The Director decided against his claim on 6 January 2016. The decision covered BOR 3 risk, persecution risk and torture risk. By a supplemental decision of 31 October 2016, the Director also assessed BOR 2 risk in respect of the applicant and decided against the applicant.
3. The applicant appealed to the Torture Claims Appeal Board. After a hearing held on 24 November 2016, the Board dismissed the appeal on 17 March 2017.
4. The intended judicial review was in respect of the decision of the Torture Claims Appeal Board. In the Form 86 filed by the applicant on 19 April 2017, the applicant attached a statement (in the format like a letter) of 4 pages setting out his grounds. He also supported his application by an affirmation of 19 April 2017. The main grounds he relied upon were:
(a) Lack of opportunity to produce additional information as he did not receive the letter from the Director inviting him to do so regarding BOR 2 risk. Had such opportunity been given, he could provide information concerning attack and torture against his family in 2016;
(b) The Board was selective in its reliance on Country of Origin Information [“COI”].
However, certain parts of the statement were obviously not referable to the facts of the present case, see the comments of the judge in this regard.
5. The judge reviewed the materials carefully. After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, she gave the following reasons in refusing leave at [18] to [27] of the CALL-1 Form:
“ 18. During this Court hearing the applicant tried to submit new hearsay evidence that the Maoist group that attacked him went to his home again only 6 months ago, tortured his parents and burnt their home down. This time his parents made a police report which was rejected and ignored because the Maoist group bribed the police. He also said people are asking where he is and if he had more time he could submit more evidence to support his claim. These were not facts before the Director or the adjudicator. This ground raises matters which are fact sensitive and not to be entertained in a review application of this nature.
19. The applicant submits there are many irrelevant facts and errors of law in the adjudicator’s decision. On page 3 of the affirmation, under the heading “error in law”, there is a submission of a failure to consider and assess whether State protection existed under Article 3 for torture and CIDTP. There is a reference to a paragraph 43 of the TCAB decision referring to the applicant as a “wife” and “eavesdropping” on a telephone conversation. Firstly, the adjudicator here did consider whether State protection existed but more importantly this affirmation clearly is referring to another application for leave to apply for judicial review, a different set of facts. As is often the case, applicants do not draft their own affirmations. Affirmations are duplicated consistently with obvious slight changes made such as names, facts and countries of origin. There seems to have been a mix-up here.
20. The reference to paragraph 43 above is not a simple mistake in paragraph number because the applicant is a male and there is no scenario where eavesdropping on a telephone conversation is material. It is not in the Director’s decision either. Moreover, on page 4 of the affirmation in paragraph 3, there is a submission the officer (I am not sure if this is a reference to the Immigration officer or the adjudicator) seemed to be rude and appeared biased to the applicant. The officer, I quote “also accepted in paragraph 48 that I was alleged assaults and threat of death from my opponent but officer judge it that they only want that I leave my country on a small life threat so why they were assaulting me and threatening me for death… it seems officer has decided to refuse my claim without any weight of refuse facts but just rely on his own speculations.” There is no paragraph 48 in the TCAB decision. Paragraph 48 of the Director’s decision does not contain what I have just quoted....
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