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HCAL606/2017
[2018] HKCFI 1355
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 606 of 2017
BETWEEN
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Narinder Kumar |
Applicant |
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Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office |
Putative Respondent |
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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;
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 tried to enter Hong Kong from Macau Ferry at the Macau Ferry terminal on 10 February 2014 with his cousin but both men were refused permission to land. Upon removal, the applicant requested a meeting with his legal representative who had met him there. After that meeting the applicant, through his legal representative lodged a torture or CIDTP claim because his life was in danger in India. He was allowed to enter Hong Kong. His subsequent non-refoulement protection claim was rejected by the Director of Immigration (“the Director”) on 10 October 2014 and 18 January 2017. This last decision related to the applicant’s BOR 2 risk claim only.
2. The applicant had lodged an appeal/petition after receiving the decision of 18 January 2017 with the Torture Claims Appeal Board (“TCAB”) but lodged it late, not within 14 days from the date of that decision. The application was six days late and the explanation to the TCAB was that the applicant had moved house and did not get the Director’s letter on time. In his affirmation to support this application he admits that he did not inform the relevant department of his change of address. The adjudicator did not allow the late filing of the notice of appeal and set out his reasons why in his decision dated 1 September 2017. He did not consider the explanation given by the applicant sufficient or valid; there was no documentary evidence to support his explanation.
3. The applicant filed a notice of application for leave to apply for judicial review dated 11 September 2017 and requested an oral hearing. The applicant appeared in person on 5 February 2018 and repeated that he had not filed his notice of appeal to the TCAB on time because he had moved house, changed his address and not received the Director’s decision dated 18 January 2017.
4. The basis of his claim was that if the applicant were to return to India he would be harmed or killed by people from the Bhartiya Janta Party (“BJP”) because he was an active supporter of the Indian National Congress Party (“INC”) and refused to switch allegiance. The Director has set out the applicant’s evidence and case in his decision of 10 October 2014 in detail therefore, I will only summarise it here.
5. In short, the applicant had successfully supported his party in a local election in July 2013; he managed to get many votes for his party candidate. After that success, a member of the BJP requested the applicant to join their party for an attractive remuneration but he rejected that offer because of his loyalty to the INC. In December 2013 the applicant was deliberately pushed off his motorcycle and was injured. When he was on the ground after the fall he was beaten by a member of the BJP with a hockey stick until he was saved by a passersby. After receiving medical treatment, the applicant did try and report this to the police but was assaulted by a police officer.
6. One week after this incident he was approached by the same member of the BJP when he was electioneering for the INC and a fight started between them. The applicant was not injured during this fight. An election was held for the village chief soon after this fight and the BJP and SAD won not the INC candidate.
7. In January 2014 the applicant was told by his mother that the same BJP member was looking for him earlier that day and she advised him to leave home immediately. After that he arranged to leave India.
8. In January 2017 the Director gave the applicant an opportunity to submit further information if he had any to support a BOR 2 risk claim. The Director did not receive any additional information from the applicant and after reviewing the applicant’s evidence and case again found that he had failed to establish a personal and real risk of his absolute and non-derogable rights under the Hong Kong Bill of Rights being violated, including his right to life under BOR 2 if he returned to India. That decision was dated 18 January 2017.
Leave to apply for judicial review
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.
13. In my judgement, the applicant’s claim is not reasonably arguable. There is no realistic prospect of success therefore, I refuse leave to apply for judicial review.
Dated 27th day of June 2018
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(Alan Ngan)
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 his solicitors must: |
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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)). |
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Sent to the Applicant on 27/6/2018
Narinder Kumar
Applicant’s ref. no:
Nil. |
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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 27/6/2018
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
Putative Respondent’s ref. no.:
BOR 125/17/2/34/IN34
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 168/14 & RBCZ 9001391/16 (formerly RBCZ 48/14)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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