Case Document

100%Judiciary

HCAL1136/2017

[2019] HKCFI 2020

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1136 of 2017

BETWEEN

	Malkeet Singh	Applicant
	and
	Torture Claims Appeal Board/ Non-refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

Application for Leave to Apply for Judicial Review

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

Following:

consideration of documents only

consideration of documents and oral submission by the Applicant in open court

Order by Deputy High Court Judge Josiah Lam:

Leave to apply for judicial review be refused.

Observations for the Applicant

Background

1.The Applicant is a national of India. He is now aged 27 (DOB: 10 June 1992).

2.The Applicant left India for Thailand on 17 May 2013. He arrived in Hong Kong on 22 May 2013. He was refused permission to land but he raised a torture claim[1] through a legal representative on 23 May 2013.

3.The Director of Immigration (“the Director”) rejected the Applicant's torture claim on 29 July 2013 [“the Director's 2013 decision”]. There was no appeal to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“TCAB/NCPO” or simply “the Board”).

4.The Applicant asked for non-refoulement protection further by way of written representation on 10 March 2014. The Director considered the Applicant's case with respect to persecution risk[2] and BOR3 risk (risk of torture or cruel, inhuman or degrading treatment or punishment)[3]. On 12 March 2015, the Director rejected the Applicant's non-refoulement claim with respect to those two applicable grounds [“the Director's 2015 decision”].

5.The Applicant appealed against the Director's 2015 decision to the Board on 26 March 2015. The Board rejected his appeal on 14 December 2016. In that decision, the Adjudicator found him ‘wholly unreliable’. He did not believe the Applicant’s claim. The Adjudicator rejected the Applicant’s appeal against the Director's 2015 decision on 14 December 2016 [“the Board's 2016 decision”].

6.On 5 June 2017, the Director further considered the Applicant’s case with respect to the last applicable ground: BOR2 risk (risk of violation of the right to life)[4] [“the Director's 2017 decision”].

7.The Applicant appealed against the Director's 2017 decision late to the Board, only on 14 August 2017. The Adjudicator dismissed his late appeal on 12 December 2017. [“the Board's 2017 decision”]

8.The Applicant applied for leave for judicial review on 22 December 2017. In Form 86, he named the Board as respondent and the Director as interested party. The Applicant stated he sought relief of the Board's decision dated 12 December 2017. The Board's 2017 decision was only related to BOR2 risk. The Applicant did not make the Board's earlier decision dated 14 December 2016 a subject matter of the current application. [Any application for leave to apply for judicial review of the Board's 2016 decision would be time-barred in the absence of any good reason by the time the Applicant filed the current application on 22 December 2017.]

Different allegations

9.The Applicant made inconsistent allegations at different stages of the screening process before the Director and the Adjudicator.

10.On 23 May 2013, the Applicant arrived in Hong Kong. He was refused entry. The Applicant summoned a ‘lawyer’ to the airport. After meeting that person, the Applicant made a written representation stating he and the two persons travelling with him to Hong Kong had reported a drug related crime to the India police. The drug dealer found out his identity and tried to kill him.

11.The Applicant later claimed to the Director that he fell in love with a girl called Saroj. She was the daughter of the Chief Minister of Rajistan. The Chief Minister, Ashok Gehlot, disapproved their relationship and threatened to kill him.

12.In 2016, the Applicant appealed to the Board against the Director's 2015 decision relating to persecution risk and BOR3 risk. The Adjudicator found out from country-of-origin information ("COI") that Ashok Gehlot had only one daughter called Sonia, who was married and lived in Mumbai. The Applicant then changed his claim of risk, saying he got life-threatening phone calls from an unknown person. The Adjudicator found him wholly unreliable.

13.In his appeal against the Director's 2017 decision relating to BOR2 risk, the Applicant made no mention of his fear for the drug dealer or his troubled love with Saroj. Instead, he alleged the corrupt Punjabi police would kill him but he gave no details or reasons for the new allegation.

Late appeal to the Board against the Director's 2017 decision

14.The Director's 2017 decision was issued on 5 June 2017. The notice of decision was sent to the Applicant’s reported address and to the Duty Lawyer Service. The Adjudicator deemed the Applicant received the notice on 7 June 2017 so the appeal deadline would be 21 June 2017. The Applicant only appealed to the Board on 14 August 2017. It was 54 days beyond the deadline.

15.The Applicant gave reason for his late filing of appeal. He said he did not receive the Director's 2017 decision until early August 2017. He thought it had been sent to the wrong address.

16.The Adjudicator considered the reason given by the Applicant for the delay was vague. On 21 November 2017, he wrote to the Applicant requesting him to give more information and proof. The Applicant did not respond.

17.The Adjudicator was not convinced by the vague late filing reason provided by the Applicant.

18.The Adjudicator also considered the Applicant's grounds of appeal and the merits of his case. He noted the blatantly inconsistent claims of risk made by the Applicant at different stages of the screening process (see paras 9-13 above).

19.The Adjudicator did not find the Applicant had good reasons for his 54-day delay, which was substantial. He also found no special circumstances that oblige him to accept the late appeal. On 12 December 2017, the Adjudicator dismissed the Applicant’ late appeal against the Director's 2017 decision.

Grounds of judicial review

20.The Applicant complained the Adjudicator was not acting fairly. The Adjudicator failed to consider he was not legally represented and failed to hold a hearing with him to clarify his situation. The Applicant also said the Adjudicator did not inform him in his language that he could complain.

Court hearing

21.The hearing took place on 21 September 2018. The Applicant was in person. A Punjabi interpreter provided service in court.

22.The Applicant said he knew some English but still needed a friend to help him to prepare Form 86 and the affirmation. All the grounds of judicial review were in the documents. He said the Board's 2017 decision was not correct and should be reviewed.

23.The Applicant confirmed he had submitted all of his case to the Director and the Adjudicator for their consideration of his non-refoulement claim.

Discussion

24.Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.

25.A non-refoulement claim involves ‘life and limb’; any decision will bear significant consequences on an applicant. Therefore, high standards of fairness must be achieved. The court should look at an applicant’s case under ‘rigorous examination and anxious scrutiny’.[5] Nevertheless, it is said in Re Islam Rafiqul:-

“The role of the Court in a judicial review is not to provide a further avenue of appeal. The primary decision-makers are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of issue at hand, the Court should not usurp the role of the Board. Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The Court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.” [6]

Late filing of appeal to the Board

26.s. 37ZS (1) of the Immigration Ordinance states: –

A person who wishes to appeal against a decision referred to in section 37ZR must file with the Appeal Board a notice of appeal within 14 days after notice of the decision is given to the person unless late filing of the notice is allowed by the Board under section 37ZT(3).

27.s. 37ZT of the same ordinance provides: –

(1)  If a notice of appeal is filed after the expiry of the 14-day period referred to in section 37ZS(1), it must include an application for late filing of the notice, which –

(a)  must include a statement of the reasons for failing to file the notice within that period; and

(b)  must be accompanied by any documentary evidence relied on in support of the reasons referred to in paragraph (a).

(2)  The Appeal Board must decide, as a preliminary decision without a hearing, whether the Board allows the late filing of the notice of appeal under subsection (3), and in doing so, the Board may only take account of—

(a)  the statement of reasons stated in the application for late filing of the notice of appeal and any accompanying documentary evidence relied on in support of those reasons; and

(b)  any other relevant matters of fact within the knowledge of the Board.

(3)  If the Appeal Board is satisfied that by reason of special circumstances, it would be unjust not to allow the late filing of the notice of appeal, the Board may allow the late filing of the notice and must, by written notice, inform the person filing the notice of the Board’s decision.

(4)  If the Appeal Board does not allow the late filing of the notice of appeal, the Board must, by written notice, inform the person filing the notice that the Board refuses the notice as it is filed out of time.

28.The Applicant complained the Adjudicator was not acting fairly and failed to consider he was not legally represented.

29.The Adjudicator was certainly aware the Applicant was not legally represented. The Court of Appeal has repeatedly stated that an applicant of non-refoulement claim does not have an absolute right to free legal representation at all stages of the proceedings.[7]

30.The Applicant complained the Adjudicator failed to hold a hearing with him to clarify his situation.

31.The Applicant filed his appeal against the Director's 2017 decision late. According to s.37ZT(2) of the Immigration Ordinance, the Adjudicator must decide, as a preliminary decision without a hearing, whether the Board should allow the late filing of appeal.

32.In the Notice of Appeal, the Applicant gave reason for his late filing of appeal. He said he did not receive the Director's 2017 decision until early August 2017. He thought it had been sent to the wrong address. The Adjudicator considered the reason was vague. On 21 November 2017, he wrote to the Applicant to invite him to give more information and proof. The Applicant did not respond.

33.The Adjudicator was not convinced by the vague late filing reason provided by the Applicant. Nevertheless, he considered the Applicant's grounds of appeal and the merits of his case. The Adjudicator noted the blatantly inconsistent claims of risk made by the Applicant at different stages of the screening process.

34.The Adjudicator did not find the Applicant had any good reason for his 54-day delay, which was substantial. He found no special circumstances that oblige him to accept the Applicant's late appeal against the Director's 2017 decision. On 12 December 2017, he dismissed the Applicant’s late appeal.

35.The Adjudicator had considered all the circumstances in the Applicant's case. His decision not to allow the Applicant's late filing of appeal was not Wednesbury unreasonable.

36.The Applicant complained the Adjudicator did not inform him in his language that he could complain.

37.The Adjudicator had no such duty. The facts of the case showed the Applicant himself knew what he could do and should do. He filed his appeal to the Board against the Director's 2017 decision late but he filed his first appeal to the Board in March 2015 against the Director's 2015 decision in time. He also filed the current application for leave for judicial review of the Board’s 2017 decision in time. His documents were properly prepared in English and he confirmed all the grounds of his application were there.

38.I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. I am satisfied the Adjudicator had proper basis for his finding and decision which were not Wednesbury unreasonable. He made no errors of law and there was no procedural unfairness. The Applicant had been given reasonable and sufficient opportunities to explain his claim in the screening process. He had been given enough chance by the Adjudicator to explain for his late appeal against the Director's 2017 decision. He did not respond to the Adjudicator’s written request. The Adjudicator was acquainted with the Applicant's claim. He considered the Applicant’s situation carefully and applied the law correctly. The Adjudicator had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim.

Conclusion

39.The Applicant's complaints are not reasonably arguable. He has no realistic prospect of success in the sought judicial review. I therefore refuse to grant him leave to apply for judicial review.

Dated the 14^th day of August 2019

(Henry Ng)
for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or the Applicant’s solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 14/8/2019 Malkeet Singh Applicant’s ref. no: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 14/8/2019 Torture Claims Appeal Board/ Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 1269/15/3/189/IN315 & BOR 915/17/8/22/IN241 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 705/14 & RBCZ 9000809/17 (formerly RBCZ 2002442/14) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)

Form CALL-1

[1] As defined in Part VIIC of the Immigration Ordinance, Cap 115, which definition is the same as that found in Article 1 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

[2] By reference to the non-refoulement principle under Articles 33 and 1A(2) of the 1951 Convention relating to the Status of Refugees.

[3] Under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[4] Under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[5] Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45.

[6] CACV 219/2018 [2018] HKCA 570, para 14(1).

[7] CACV 284/2017 Re Paswan Shibu Lal, para 21.

Cites 4 cases

Cases cited in this judgment