Kamal Kumar v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL657/2017

[2018] HKCFI 1664

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 657 of 2017

BETWEEN

Application for Leave to Apply for Judicial Review

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

Following;

	consideration of the documents only;     or
	consideration of the documents and oral submissions by the Applicant in open court;

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.The applicant is an Indian national who arrived in Macau from India on 26 February 2014, travelled to Hong Kong by ferry and was refused permission to land but then raised a non-refoulement protection claim with the assistance of a Hong Kong lawyer.  This claim was rejected by the Director of Immigration (“the Director”) on 12 September 2014 and 12 January 2017.  The applicant did file an appeal/petition with the Torture Claims Appeal Board (“TCAB”) after the 12 September 2014 determination which was rejected after three oral appeal hearings on 19 August 2016.  The applicant did not appeal/petition the Director’s decision of 12 January 2017.

2.The applicant filed a notice of application for leave to apply for judicial review on 21 September 2017 and requested an oral hearing.  In that application he seeks relief against the Director’s decision dated 12 September 2014 and a TCAB decision apparently dated 28 March 2017.  During the oral hearing of 21 March 2018 the applicant appeared in person and was asked to explain why his application was nearly three months late; according to Order 53 Rule 4 his application should have been made within three months of the date of the determination.  There was an explanation in his supporting affirmation that did not make sense except that he admits he did not inform the TCAB of an updated new address and therefore did not receive the result of his appeal by post.

3.It transpired during the course of the hearing that the TCAB decision dated 28 March 2017 he had filed with his application did not relate to him but another claimant with the same name.  His hearing was adjourned to 8 March 2018 and the correct appeal decision was obtained from the TCAB office; it was determined much earlier on the 19 August 2016 and only related to the Director’s decision of 12 September 2014.  Therefore, this application was not nearly three months late but 10 months late.  The applicant had to apply for an extension of time to file this application.

An extension of time to apply for leave

4.When asked why he filed this application to apply for leave for a judicial review of the September 2014 and August 2016 decisions so late, he replied that he did not know the TCAB had sent him a letter or, in other words, he did not receive the TCAB’s decision.  The court asked the applicant whether he changed addresses and did not tell the TCAB; he said that he had moved and did not tell them of his new address.  He confirmed that the reason for the delay of 10 months in this application is that he had moved home, had not informed the TCAB of his new address and therefore did not receive the decision in the post.  He only knew to approach the TCAB office in person to ask for a copy of the decision because an Immigration officer had informed him that his appeal had been determined. It must be the applicant’s responsibility to inform the TCAB of any change of address especially when such an important decision is pending; he has no good reason for the delay.  It must also be the case that he did not inform the Immigration Department of his new address because he did not know of/appeal the BOR 2 decision.  It is entirely his responsibility to keep these offices informed of any change in circumstances especially when important decisions are pending.

5.I have considered the legal principles for granting an extension of time to apply for leave for judicial review.  The following factors are significant such as the length of delay, the explanation given for the delay, the merits of the substantive application, the prejudice to both the respondent and to the public administration and whether the application raised any questions of general public importance.

6.The delay is significant and there is no good reason for extending time.  This is because his explanation for the delay is weak and the merits of the substantive application after a perusal of the papers are also weak.  Moreover, the application does not raise any questions of general public importance.  The extension of time sought is an abuse of process and ought to be refused.  Delay alone is enough to dispose of this application.  However, if I am wrong, I proceed to consider the merits.

Observations

7.He seeks leave to apply for judicial review against both the TCAB and the Director.  There are three grounds in his affirmation and none relate directly to the Director’s decision.

8.The first ground is a complaint by the applicant he was not provided with legal representation for his appeal.  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 his 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”.

9.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 him beyond what was provided by the duty lawyer scheme to him.  I do not agree, the fact that it is not automatic cannot be defined as a miscarriage of justice.  The fact the applicant was unrepresented in his appeal has not been shown to be procedurally unfair.  The duty lawyer scheme will represent applicants in their appeal if they are of the view there is merit in their cases.  Their assessment is on a case-by-case basis.

10.The second ground has no merits either. The applicant complains he did not receive a letter from the Director inviting him to submit information if he had any to support a BOR 2 risk claim.  I can see from the Director’s notice of further decision dated 12 January 2017 rejecting the applicant’s BOR 2 risk claim that the Director wrote to the applicant on 22 December 2016.  If the Director had the applicant’s correct address, I find it hard to believe he did not receive either letter sent just weeks apart.  In any event, it is clear from the papers, he did not rely on a BOR 2 risk claim as part of his case.

11.The last ground is a criticism of the absence of the Director at the appeal hearing.  The applicant would have received the Director’s submissions in his appeal bundle.  His absence is not unfair to the applicant, there is no merit in this ground.

12.Even if I should have given the applicant an extension of time to file this application there would have been no grounds that were reasonably arguable.  There would have been no realistic prospect of success because there were no errors of law by the Director or the adjudicator.  I saw no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness.  The substantive decisions did satisfy the enhanced Wednesbury test; they were not Wednesbury unreasonable.  I would have refused leave to apply for judicial review.

Dated 25^th day of July 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