Re Ram Ishver Dass

CACV 504/2018

[2019] HKCA 27

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 504OF 2018

(ON APPEAL FROM HCAL 36/2018)

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Before: Hon Lam VP and B Chu J in Court

Date of Hearing: 3 January 2019

Date of Judgment: 10 January 2019

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JUDGMENT

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Hon B Chu J (giving the Judgment of the Court):

1.This is an appeal from the decision of Deputy High Court Judge Bruno Chan (“the Judge”) given on 28 September 2018. The intended judicial review is against the decision of the Torture Claims Appeal Board/the adjudicator of the Non-refoulement Claims Petition Office (“the Board”) dated 5 January 2018 refusing to allow the applicant to file his notice of appeal/petition out of time against the decision of the Director of Immigration (“the Director”) dated 6 January 2017 rejecting the applicant’s claim for non-refoulement protection in Hong Kong.

Background

2.The applicant is a national of India.  He entered Hong Kong, via the Mainland China, on 23 September 2014.  He was granted permission to remain as a visitor until 7 October 2014.  He did not depart upon the expiry of his permission to remain, and overstayed illegally. He surrendered to the Immigration Department on 10 October 2014 and lodged his claim for non-refoulement protection on 24 November 2014.

3.The applicant’s claim was based on the fear that, if he returned to India, he would be harmed or even killed by his travel agent because he had requested a refund from the travel agent who failed to help him to get a job in Japan as promised between them.  The factual background of this case was summarized in [2] – [5] of the CALL-1 form (published as [2018] HKCFI 2188).

4.The Director assessed the applicant’s claim on all applicable grounds, namely the torture risk[1], the BOR 3 risk[2], the persecution risk[3], and the BOR 2 risk[4]. By a notice of decision dated 6 January 2017, the Director determined the risks against the applicant and rejected his non-refoulement claim.  It was also enclosed in the Director’s notice a copy of notice of appeal/petition, and the applicant was reminded that, if he was aggrieved by the decision, he should lodge his notice of appeal/petition within 14 days from the date of the Director’s notice.

5.The applicant did not lodge his notice of appeal/petition until 16 March 2017, which was almost two months after the expiry of the 14-day period.  The applicant explained that he had changed his address and did not recieve the Director’s notice within time.  Having considered the applicant’s explanation, the Board did not consider that there was any special circumstance in the case to justify a late filing of the appeal.  It took the view that the applicant was under an obligation to notify the Director of any change in address, and that there was nothing unjust to refuse the application.  Accordingly, the Board refused the applicant’s application for late filing of appeal on 5 January 2018.

The Judge’s decision

6.On 14 January 2018, the applicant applied to the court for leave to apply for judicial review against the Board’s decision. According to his affirmation in support, the applicant advanced 8 grounds for seeking relief in the intended judicial review alleging that the Board made certain errors in assessing the merits of his case (which the Board did not do).  The said grounds were set out in [13] of the CALL-1 Form. 

7.Furthermore, in his affirmation, the applicant provided particulars as to why he failed to lodge his notice of appeal/petition within time.  The said particulars were set out in [14] of the CALL-1 Form.

8.After an oral hearing on 8 August 2018, the Judge refused to grant leave for the applicant to apply for judicial review. The Judge’s reasons in refusing leave were set out in [15] – [19] of the CALL-1 Form as follows:

“15. Firstly, the applicant’s complaint about the Board not conducting any oral hearing so as to understand the reasons for the late filing of his appeal is wholly invalid since it is statutorily and specifically provided in section 37ZT(2) above that the Board must decide as a preliminary decision without a hearing (my emphasis) whether or not to allow the late filing, and as it also stipulates that the Board may only take account of the statement of reasons stated in the application and any accompanying documentary evidence in support and any other relevant matters of fact within its knowledge, it is therefore incumbent upon the applicant to provide in the statement his reasons clearly and fully with all the necessary information and evidence in support given the absence of any oral hearing and hence with no opportunity for further explanation or clarification.

16. Further, whilst it is accepted that English was not the applicant’s language and that by then he no longer had legal representation from the Duty Lawyer Service, he was nevertheless able to provide his statement of the reasons for his late filing in his preferred language of Hindi, and hence there was no excuse not to provide a full picture to the Board including those information which the Board in my judgment had correctly identified as important and necessary for its preliminary decision but were found missing from the applicant’s statement.

17. The kind of reason given by the applicant for his late filing that he had changed address and the Director’s decision went to his old address despite his duty to update the Director is in my experience common amongst non-refoulement claimants in similar situations, which no doubt may well be perfectly legitimate for some of them, but it is also one which is easy to make but difficult to verify by the Board, and hence it was all the more pertinent for an applicant to substantiate such a reason fully and clearly in details with all the relevant dates and changes of addresses and to be substantiated with all the documentary evidence available to the applicant. It is not something difficult in terms of legal or technical sense but rather just common sense, and which the applicant in his case has for no good reason failed to discharge of what is clearly and statutorily his burden to do so.

18. In the premises I do not find any error of law or procedural unfairness in the Board’s decision not to allow the late filing of the applicant’s notice of appeal, or any failure on its part to apply high standards of fairness in its consideration of the application.

19. For these reasons I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and I accordingly refuse his leave application.”

The appeal

9.The applicant filed a notice of appeal on 8 October 2018.  The sole ground of appeal he relied on was that he could not go back to his home country because his life was not safe there.

10.By a letter dated 8 October 2018, the applicant gave consent that this appeal be heard before a two-judge court.

11.In compliance with the directions of the court, the applicant lodged his skeleton submissions on 26 November 2018.  In it, the applicant reiterated that his life was not safe in his home country.  It was further submitted that his enemies can bribe the police and can use then political power to torture him. 

12.We heard the appeal on 3 January 2019.

Discussion

13.In the present case, having considered the applicant’s explanation for delay, the Board could not find any special circumstances allowing the applicant to file the notice of appeal/petition out of time.  After giving due consideration to the Board’s decision, the Judge could not find any error of law or procedural unfairness that warranted a reversal of the Board’s decision.

14.Plainly, the matter stated in the notice of appeal does not constitute a valid ground of appeal.  Basically, what the applicant tries to do is to invite this Court to reassess the merits of his case as afresh.  Apart from the fact that this is not a permissible course on appeal, the merits of his claim were actually not the subject matter of the proceedings before the Judge (or even the Board).  As we have said many times before, in the determination of an appeal, the Court of Appeal will only focus on the decision of the judge, and will not reverse that decision unless an appellant can demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong: see United Muslim Association of Hong Kong v Yusuf Yu [2018] HKCA 451 at [38] and [39]; 秦錦釗及香港特別行政區 [2018] HKCA 167 at [8]; 秦錦釗及東區法院裁判官陳炳宙 [2018] HKCA 448 at [32]; 黄碩雄及范荏愷 [2018] HKCA 168 at [4]; 關媛薇 [2018] HKCA 205 at [9]; 陳碩謙對醫院管理局 CACV 43/2015, 14 December 2015.

15.Having considered the materials before us, as well as the applicant’s skeleton submissions, we take the view that the Judge’s observations are fully justified.  We would highlight two points of our own. First, the applicant complained that the immigration officer did not inform him of the progress of his case when he reported recognizance at the Immigration Centre.  In our view, this complaint is misplaced.  There is no basis to suggest that an immigration officer at the Immigration Centre is under any obligation to do such things as alleged by the applicant. 

16.Secondly, the applicant does not deny that he had not informed the Director of his change of address.  As we have said before, it is common sense that if a litigant or a claimant does not notify the authority (be it the Immigration Department, the Board, or the court) in his change of address, there would be delay in communication.  If he does not do so, he should arrange for timely transmission of mail from his old address to his new address.  It is the duty of a litigant/claimant to give the authority an address to which correspondence or notice can come to his attention in timely manner.  The consequence of any delay occasioned by the ineffectiveness of such an address would fall on the shoulder of the litigant/claimant, see: Islam Raja Rais v Director of Immigration HCMP 881/2017, 26 June 2017; Said Umair v Torture Claims Appeal Board [2018] HKCA 82; and Re Saqlain Muhammad [2018] HKCA 346. 

17.We agree with the Judge that leave to apply for judicial review should be refused.

18.For these reasons, we dismiss the appeal.

The applicant acting in person