Karamjit Singh v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL594/2017

[2018] HKCFI 515

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 594 of 2017

BETWEEN

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

Order by Deputy High Court Judge Woodcock:

Leave to apply for Judicial Review refused.

Observations for the Applicant (Order by Deputy High Court Judge Woodcock):

1.This applicant is an Indian national who was refused entry into Hong Kong twice in January 2014 and then again on 6 February 2014 through the China Ferry Terminal Immigration Entry Point.  On 7 February 2014 he was detained by the Immigration Department.  He then lodged a non-refoulement protection claim which was dismissed by the Director of Immigration (“the Director”) on 10 July 2014.  The applicant did lodge an appeal/petition to the Torture Claims Appeal Board (“TCAB”) but lodged it late and on 14 November 2014 the TCAB refused his application for late filing of the notice of appeal/petition.

2.Two years later, the Director sent the applicant a Notice of Further Decision dated 30 December 2016 informing him that he had failed to establish a personal and real risk of his absolute and non-derogable rights under the Hong Kong Bills of Rights Ordinance being violated, including his right to life under BOR 2; his BOR 2 risk claim failed.  He was informed in the same notice that he had the right to lodge a petition/appeal within 14 days from the date of that notice.  The applicant did lodge a petition/appeal but lodged it six days late.

3.The applicant had to apply for an extension of time to file the petition/appeal and provide a statement of the reasons for late filing and submit relevant documentary evidence in support of such reasons.  The adjudicator of the TCAB considered his application and reason before dismissing his application on 25 August 2017.  The reason given by the applicant was that he had moved homes and changed addresses without informing the Immigration Department who sent the Notice of Further Decision to his old address on record.  The applicant did visit his old address and collect his mail but it meant the deadline to lodge a petition/appeal had expired.  The adjudicator refused his application for an extension of time because his reason was a bare assertion not supported by documentary evidence such as envelopes, or bills like a lease or utility bills to prove a change of address.

Leave to apply for judicial review

4.The applicant has filed a notice of application for leave to apply for judicial review on 7 September 2017.  He seeks leave to apply for judicial review against not only the adjudicator of the TCAB’s decision not to grant him an extension of time to file his petition/appeal late but also the Notice of Further Decision issued by the Director.

5.The applicant has sought to judicial review the Director of Immigration’s decision as well as the TCAB’s decision.  In my view, this is not the right course of action to take.  The applicant has already utilised the channel of appealing the Director’s decision to the TCAB; leaving aside the fact he was late in making an application.  There should be no room for a judicial review of the Director’s decision.  In any event, it is also an application made out of time, that decision was made nine months before this application.  I will consider the applicant’s grounds for leave to apply for judicial review against the decision made by the adjudicator of the TCAB only.

6.In his affirmation, the applicant relies on five grounds, in the first ground, he complains of a lack of legal representation provided to him throughout his appeal process.  He complains of a lack of interpretation service provided to him throughout the claim process, it seems at his beck and call.  The third ground is a submission that the Director failed to give a reason for rejecting his BOR 2 claim.

7.The fourth ground is a failure of the Immigration Department to ensure he received their BOR 2 letters and a failure of the Department to telephone him to tell him of their decision.  He was unaware he was obliged to update the Immigration Department when he changed addresses.  The fifth ground is one of procedural unfairness where the adjudicator decided he had no substance to his application without a hearing which is a failure to adhere to a high standard of fairness.

8.There is no merit in the first ground; no authority from the higher courts have prescribed that an asylum seeker must have an absolute right to free legal representation at all stages of the proceedings.  The applicant already had the benefit of legal representation in presenting his case to the Director including the presence of a lawyer at the interviews by an immigration officer.  Thereafter, the duty lawyer service will continue to represent an applicant during his appeal if they are of the view that his appeal has merits.

9.Interpretation service has been provided to the applicant during interviews and at hearings.  It could not be the intention of any authority laying down the principle of a high standard of fairness that it would include such a service at any time an applicant desired or required.  There are no particulars to this ground and there is no merit in it.

10.The third and fourth ground relate to the Director and as I have said are not subject to this application but I will say that the Director has given reasons for rejecting the applicant’s BOR 2 risk in his Notice of Further Direction, he made clear reference to the reasons of his previous decision as well in so far as they are relevant.  In addition, it is not reasonable for the applicant to expect the Director to telephone every applicant to ensure they have received correspondence.

11.More importantly to this application, I do not accept the applicant’s excuse that he was unaware that he was obliged to inform the Immigration Department that he had changed his correspondence address.  The fact that he went personally to his old address to check if he had any letters indicated that he knew the importance of his correspondence.  I agree with the adjudicator that it would not have been difficult to prove with documentary evidence that he had moved and changed correspondence addresses and prove when he moved.  Without it, his excuse was a bare assertion.

12.The fifth and last ground suggests that the only reason the adjudicator rejected the applicant’s application for late filing was because he found there to be no merits in his grounds of appeal/petition.  A reading of the adjudicator’s decision will show this is not true.  The adjudicator rejected the application for an extension of time after considering the applicant’s reason for the delay.  He found it a bare assertion with no documentary evidence to support it when such evidence would not have been hard to submit.  He found the applicant had a duty and obligation to report a change of address to the Immigration Department in view of his status in Hong Kong and he failed to comply with that obligation in a timely fashion.  He can blame no one but himself.  The adjudicator added after those reasons, that he also “noted” the grounds of petition and found there was no substance in them.  I do not agree that this meant this was the reason he rejected the applicant’s application for an extension of time.  There is no merit in this last ground.

13.None of the grounds put forward by the applicant showed any error of law by the adjudicator.  There was no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness.  The substantive decision was not Wednesbury unreasonable.  None of the grounds were reasonably arguable and there is no realistic prospect of success.  I refuse leave for judicial review.

Dated 16^th day of March 2018.

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

Form CALL-1