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

CACV 289/2018

[2019] HKCA 183

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 289 OF 2018

(ON APPEAL FROM HCAL 606/2017)

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Before:  Hon Lam VP and Kwan JA in Court

Date of Hearing:  13 February 2019

Date of Judgment: 15 February 2019

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J U D G M E N T

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

1.This is an appeal from the decision of Deputy High Court Judge Woodcock dated 27 June 2018 ([2018] HKCFI 1355) refusing to grant leave to the applicant to apply for judicial review. The intended application for judicial review was against the decision of an adjudicator of the Non-Refoulement Claims Petition Office dated 1 September 2017 refusing to allow the applicant to file his notice of petition out of time.

Background

2.The applicant is a national of India.  He left India for Macau on 7 February 2014 and tried to enter Hong Kong on 10 February 2014.  He was however refused permission to land.  Upon his request, he held a private meeting with his legal representative, and thereafter lodged his claim for non-refoulement protection.  He was then allowed to enter Hong Kong.  His claim was based on the fear that, if he returned to India, he would be harmed or killed by members of Bhartiya Janta Party because he was a supporter of the India National Congress and refused to switch alliance.  The factual background was set out in [5] – [7] of the CALL-1 form.

3.By a notice of decision dated 10 October 2014 (“the Director’s First Decision”), the Director of Immigration rejected the applicant’s claim.  This decision covered the BOR 3 risk[1], the persecution risk[2], and the torture risk[3]. The applicant did not appeal against this decision within time and his late petition was rejected by the Board on 5 March 2015.

4.On 30 December 2016, the director invited the applicant to submit additional facts relevant to the assessment of the applicant’s BOR 2 risk[4]. As the applicant did not provide any additional facts as requested, the director proceeded with assessing the risk based on the materials prepared for other applicable grounds.  By a notice of further decision dated 18 January 2017 (“the Director’s Second Decision”), the director assessed the risk against the applicant.

5.The applicant intended to petition to the adjudicator against the Director’s Second Decision.  He however failed to file his notice of petition within the statutory time limit. It was stated in the notice of petition that the delay was due to his recent change of address.  The adjudicator did not accept the applicant’s explanation as there was no documentary evidence in support and the applicant had a duty to inform the director of his change of address.  Furthermore, having considered the applicant’s grounds of appeal/petition, the adjudicator considered that they were just repetition of his claim for other applicable grounds and were not related to the subject matter of the Director’s Second Decision.  By his decision dated 1 September 2017, the adjudicator rejected the applicant’s application for the late filing of the notice of petition.

The judge’s decision

6.On 11 September 2017, the applicant applied to the court for leave to apply for judicial review against the adjudicator’s decision.  While the form 86 contained no grounds for seeking relief, the applicant advanced the followings in his affirmation in support of the application:

“ … I do not agree with the adjudicator’s decision dated 1 September 2017. Officer erred in assessing the level of risk of harm to be low on alleged reasons given by him in several Paragraphs in my notice of decision by Immigration. The Adjudicature (sic) failed miserably to consider all the evidence of my NCF. There is some error in law in my decision. Decision maker just refused my Appeal without conduct any oral hearing or even not give me any chance after I was late to filing/lodging my appeal to Torture Claims Appeal Board. I was not aware at all about my BOR 2 invitation letter by which immigration invited me to submit additional facts and grounds neither I was aware the further notice of decision. The decision is betrayed a bias and formula approach unlikely fairly access the danger of my life and clearly calculate to reject my claim…” (sic)

7.The applicant also attached to the said affirmation, among others, a 6-page document under the heading “Grounds of Review”.  In it, the applicant set out the following grounds:

(a)  “Officer” erred in assessing the level of risk of harm to be low;

(b)  The applicant was not given legal representation in the petition before the adjudicator, as well as the judicial review at the Court of First Instance;

(c)  “Officer” erred in requiring that the applicant should provide documentary evidence in support of his statement;

(d)  The applicant did inform the change of address to the immigration department when he reported the officer at the Castle Peak Immigration Centre in observance of the terms of recognizance;

(e)  The “decision maker” failed to carry out sufficient research and proper inquiry into the country of origin conditions;

(f)  “Officer” failed to consider the concept of extended state acquiescence;

(g)  “Officer” erred in speculating that the applicant had only repeated his previous application in his petition to the adjudicator and the grounds were not related to the subject matter of the director’s further decision; and

(h)  “Decision maker” made his decision based on selective COI materials which were against the applicant’s claim and ignored those materials that were in favour of his claim.

8.The judge held an oral hearing on 5 February 2018.  After hearing the applicant, the judge refused to grant leave to him to apply for judicial review.  The judge’s reasons in refusing leave were set out in [9] – [12] of the CALL-1 form as follows:

“ 9. In the applicant’s affirmation he says that he never received a letter from the Director inviting him to submit additional information to support a BOR 2 risk claim nor did he receive the letter dated 18 January 2017. That was obviously because he moved and did not inform the department of his change of address. At paragraph 4 he says that he could not submit his notice of appeal because he had no legal assistance or representation which is different from his explanation that he did not submit his notice of appeal on time because he had changed addresses and obviously not informed the Director of Immigration. There are no merits in these grounds.

10. The applicant also claims that the adjudicator erred because the applicant was not required to give documentary proof to support his explanation for late filing. However, this is at odds with section 37ZT of the Immigration Ordinance which the applicant even quotes in his affirmation. At subsection (1)(b) the Ordinance states that any statement of the reasons for failing to file the notice within that period must be accompanied by any documentary evidence relied on in support of the reasons. The applicant did attach some documents to prove his request for a copy of that decision in his affirmation. None of these documents were supplied to the adjudicator of the TCAB.

11. The applicant then goes on in his affirmation to set out several grounds against a decision-maker’s decision without being specific to whom he is referring. But he then in his paragraph 15 refers to the adjudicator’s decision, specifically paragraph 14 in that decision so I assume those grounds relate to the adjudicator of the TCAB. I note that in his Form 86 he is only seeking relief against the adjudicator of the TCAB’s decision. I also note that the adjudicator said in his decision that he had perused the applicant’s grounds of his appeal/petition and it was “only a repetition of his previous application under the non-refoulement protection claim and is not related to the subject matter of the notice of further decision”. The grounds the applicant now seeks to put forward in this application, if they did refer to the Director’s decision, were not even in his grounds of his appeal/petition to the TCAB.

12. I have considered the adjudicator’s decision not to extend time the applicant to file his notice of appeal.  He has followed section 37ZT and applied it strictly.  It is not an unreasonable decision.  It is not an error of law, not procedurally unfair nor evidence of a failure to adhere to a high standard of fairness.”

The appeal

9.The applicant filed a notice of appeal on 5 July 2018.  In the notice of appeal, the applicant relied on the following grounds of appeal:

“ 1. The Adjudicator of the Torture Claims Appeal Board refused to accept my Notice of Appeal/Petition filed 6 days late at the Board. I respectfully disagree with such action.

2. This is particularly since there was no chance for me to appeal to the TCAB earlier upon the issuance of Notice of Decision and hence I have never been before the Board. Furthermore, the fact that I have never provided any supplementary materials for the assessment of BOR 2 (which was rejected by the Director of Immigration without ensuring that I received any information or in fact had no information to provide), is even more so the reason that I should be given a hearing to explain myself better in person.

3. I was only seeking relief against the adjudicator of the TCAB’s decision because he was the one who agreed with the Immigration Department hence I was of the view that relief against one is relief against all. This is a misconception on my part and I apologize if there has been any misunderstanding on this issue.

4. I reserve the right to provide further details in the future in writing.  I do request for an oral hearing for the fairness of my case with an interpreter arranged.”

10.By a letter dated 9 July 2018, the applicant gave consent that this appeal be heard by a two-judge court.

11.The applicant lodged his Skeleton Submission on 10 October 2018.  In substance, the applicant repeated the aforesaid grounds of appeal in the Skeleton Submission.  He also added that the adjudicator should assess his credibility as the Director did not do so in his decision.

12.We first heard the appeal on 14 November 2018.  At that hearing, we decided to adjourn the appeal to enable the supply of information from the Director concerning the applicant’s alleged report of change of address before 27 January 2017.

13.Pursuant to the direction of the Court, a Senior Immigration Officer responsible for handling the applicant’s case filed an affirmation on 21 December 2018. According to the affirmation, the applicant had not reported any change of address between from 14 February 2016 to 26 January 2017 to the Castle Peak Immigration Centre. The letter of 30 December 2016 inviting the applicant to submit additional information and the Notice of Further Decision of 18 January 2017 were sent to the applicant at the address he gave on 13 February 2016 as well as the Duty Lawyer Scheme (who acted for him in the non-refoulement application before the Director). The letter of 27 January 2017 was the first time the applicant informed the Director of his change of address to Room D, 6 Floor, 30 Kowloon City Road.

14.The applicant lodged a set of written submissions on 23 January 2019 in response. He maintained that he had informed the Castle Peak Immigration Centre of his change of address soon after he moved in March 2016. He said he wrote the letter of 27 January 2017 because he learnt in 2017 that he also had to update his address with the Removal Assessment Section after he was told by the Castle Peak Immigration Centre of the Director’s Second Decision of 18 January 2017.   

Discussion

15.In the Director’s First Decision, the applicant’s claim was rejected on all applicable grounds except the BOR 2 risk.  The applicant did not appeal to the Torture Claims Appeal Board against this decision within time though he was reminded of the statutory time limit for lodging an appeal against the decision at para 30 of the Director’s First Decision. His late petition against the Director’s First Decision was rejected by the Board on 5 March 2015. There was no application for judicial review against that rejection.

16.Accordingly, the assessment in the Director’s First Decision was binding on the applicant.  The judge was correct in focusing on the decision of the adjudicator as any challenge against the Director’s First Decision was grossly out of time. The Director’s Second Decision did not provide an automatic extension of time to challenge the Director’s First Decision by judicial review.

17.The adjudicator refused the late filing of notice of petition in respect of the Director’s Second Decision as he found that the applicant failed to inform the Immigration Department of his change of address. It did not appear that the applicant had asserted to the adjudicator that he had made a report of his change of address to the Castle Peak Immigration Centre. 

18.The adjudicator also found no merit in the applicant’s non-refoulement claim which was a repetition of the claim previously rejected under the Director’s First Decision. 

19.After having due consideration of the adjudicator’s decision, the judge found no public law grounds to reverse the decision. 

20.Up to now, the applicant has not provided any additional facts relevant to the assessment of his BOR 2 risk.  Based on existing materials and the case advanced by the applicant, the assessment of BOR 2 risk would be the same as BOR 3 risk, the persecution risk, and the torture risk.  There is simply no basis for reversing the Director’s Second Decision. The intended petition to the board to challenge that decision has no merit.

21.As the applicant had not put before the adjudicator his assertion that he had informed the Castle Peak Immigration Centre of his change of address, it was not surprising that the adjudicator did not find a reasonable basis for the exercise of the discretion under Section 37ZT.

22.It has to be emphasized that under the statute, in particular Section 37ZT(2) the discretion is vested upon the adjudicator, not the courts. It is not open to the courts to exercise the discretion afresh based on materials not presented to the adjudicator.

23.In any event, in light of the evidence now before us, we do not accept that the applicant had notified the Castle Peak Immigration Centre of his change of address. Neither his letter of 27 January 2017 nor his representation to the adjudicator mentioned such notification. We prefer the evidence of the senior immigration officer.

24.In our view, the applicant failed to advance any viable grounds for the reversal of the judge’s decision.

25.We dismiss the appeal accordingly.

The applicant appearing in person

Ms Patricia Lam, Government Counsel, of the Department of Justice, for the putative interested party