RAM ISHVER DASS v. KAY RANSOME, ESQ., AND ANOTHER

HCAL 36/2018

[2018] HKCFI 2188

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 36 of 2018

     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;

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The applicant is a 49-year-old national of India who arrived in Hong Kong on 23 September 2014 with permission to remain as a visitor up to 7 October 2014 when he did not depart and instead overstayed until 10 October 2014 when he surrendered to the Immigration Department and lodged a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by his travel agent over a money dispute.  He has since been released on recognizance pending the determination of his claim.

2.  The applicant was born and raised in Village Chakchan Pur in District Kurukshetra of the State of Haryana in India.  After leaving school he worked as a farmer in his family farmland, and got married with five children all of whom still live in India.

3.  In August 2014 he was looking for overseas employment through a travel agent RJ for which he had paid 350,000 Indian Rupees to RJ for finding him a job in Japan, but after being brought by RJ to Hong Kong in September 2014 RJ then disappeared leaving the applicant on his own.

4.  During his stay in Hong Kong and with the help of a friend the applicant was able to contact RJ on the phone, but when he demanded for an explanation and a full refund from RJ for failing to find him the job in Japan as promised, RJ refused and threatened to kill him instead if he kept pressing him for refund, and when the applicant subsequently asked his family in India to approach RJ for the refund, RJ made similar threats to his family that he would kill the applicant if he continued to seek any refund from him.

5.  Thereafter the applicant lost further contact with RJ, but as he was fearful that he would be harmed or killed by RJ upon his return to India, he therefore overstayed in Hong Kong and lodged his non-refoulement claim, for which he later completed a Non-refoulement Claim Form on 18 June 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

6.  By a Notice of Decision dated 6 January 2017 the Director of Immigration (“the Director”) rejected the applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of his absolute and non-derogable rights under the Hong Kong Bill of Rights (“HKBOR”) being violated including right to life under Article 2 of HKBOR (“BOR 2 risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“persecution risk”).

7.  In his decision the Director took into account of all the relevant circumstances of the applicant’s claim and assessed the level of risk of harm from RJ upon the applicant’s return to India as low as the only threats made to him by RJ were on the phone when the applicant was in Hong Kong, that it was assessed as being made just to deter the applicant from seeking any refund without any evidence of real intention to harm or kill him, that it was a private and personal dispute over money that in the absence of any official involvement that state or police protection would be available to the applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in India with a large population of 1.2 billion people spread across a vast territory of more than 3.2 million square kilometers that it would not be unduly harsh for the applicant as an able-bodied adult with work experience to move to other area away from his home district such as New Delhi where it would be difficult if not impossible for RJ to locate him.  

8.  On 16 March 2017 the applicant filed his Notice of Appeal/Petition to the Torture Claims Appeal Board (“the Board”) against the Director’s decision.  He was however then late with his filing by more than two months, as section 37ZS of Part VIIC of the Immigration Ordinance provides for the filing of the notice of appeal as follows:

“ (1) 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).”

9.  For late filing of the notice of appeal, section 37ZT provides that:

“ (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.”

10.  In his Notice of Appeal the applicant did include a statement of the reasons for his late filing as follows:

“ I got late because my documents did not reach to my address and I received them late and I have changed my room that is why it reached on my old room (address) and I brought them later and because of this I got late. Kindly accept the appeal case. Thanks.”

11.  In dealing with the applicant’s late filing of his notice of appeal the Board in its decision dated 5 January 2018 first set out the above provisions of the Immigration Ordinance, and also noted that The Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme also sets out the identical process for considering late appeals from the Director’s decision in respect of BOR 2 risk, BOR 3 risk and persecution risk, all of which all formed part of the applicant’s claim.

12.  The Board then went on to consider the applicant’s reasons for his late filing of the notice of appeal and refused his application as follows:

“ 9. This appeal was filed almost two months after the expiry of the 14-days period. The reason given by the Appellant for the late filing is that he had changed address and the notice of the Director’s decision went to his old address. He states he therefore did not receive the decision in order to appeal within time. The Appellant has provided no information about the date on which he in fact became aware of the decision or the circumstances in which it was drawn to his attention. Nor has he provided information about when he changed address and whether he notified the Department of the change.

10. I do not consider there are special circumstances in this case which would mean the late filing of the appeal should be allowed.  In the circumstances where the Appellant was under an obligation to notify the Director of any change in his address, it is not unjust to refuse the application to allow the late filing of the appeal.”

13.  On 8 January 2018 the applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

(1)  procedural impropriety/unfairness in the adjudicator’s failure to carry out sufficient research and inquiry into COI and for failing to have regard to relevant and up-to-date COI in the consideration of his claim;

(2)  irrationality in the adjudicator’s failure to take into account or putting proper weight on relevant COI and for cherry-picking and putting weight on irrelevant COI in the consideration of his claim;

(3)  irrationality in the adjudicator’s failure to evaluate and make finding of fact as to whether a consistent pattern of gross and mass violation of human rights in India;

(4)  irrationality in the adjudicator’s failure to analyze and assess whether state protection exists in India and misdirected herself as to the extended meaning of state protection;

(5)  irrationality in the Board’s decision in taking into account and putting weight in irrelevant consideration or based on incorrect or inaccurate facts;

(6)  procedural impropriety for failure to call for psychological and psychiatric evaluations and reports on the applicant;

(7)  procedural impropriety/unfairness in the adjudicator applying the incorrect standard of proof in her decision; and

(8)  procedural impropriety/unfairness due to lack of or insufficient representation from the assigned duty lawyer for the applicant resulting in unfair procedure.  

14.  These grounds however would only be relevant had the Board allowed the late filing of the applicant’s notice of appeal.  As such it would only be necessary to consider the applicant’s grounds for challenging the Board’s decision for refusing the late filing of his appeal as stated above, of which the applicant argued as procedural impropriety/unfairness on page 16 of his affirmation as follows:

“ 1. On 05 of January 2018, the Torture Claims Appeal Board refused his appeal. But the Applicant get the Decision letter on 06 January 2018. Even the Applicant requested to the Torture Claims Appeal Board to notify him by phone but the TCAB didn’t.

2. The only main reason was put in the Applicant’s Decision which is late filing of the Appeal/Petition. The Adjudicator don’t even tried to find out the reason behind the late filing.

3. After release from the CIC the Applicant was homeless. It took several months to the Applicant to find his own accommodation. Even the Applicant was homeless and was living a very difficult life but he never stopped reporting to the Ma Tao Kok Immigration reporting centre regularly. He never missed any of his reporting date. But the Applicant was never informed or told anything about his case progress in Immigration department.

4. In the Notice of Decision said that the Immigration and the DLS failed/unable to contact the Applicant which is why the Applicant’s claim was rejected without any screening interview or any simple process of his claim. But the Applicant always report to Ma Tau Kok like once a month then how come the Immigration couldn’t find the Applicant. This is the lack of the Immigration officer’s duty and responsibility to the Applicant. This is not fair.

5. On the other hand the Adjudicator from the TCAB don’t even bother herself to find the reason of the Applicant’s late filing. She just completed her formalities by just sign the decision and refused it without any simple inquiry.

6. The Applicant was not late to file the Appeal/Petition. The Applicant did everything with his little knowledge without any advice or and legal advice or any legal representation. By seeing the Applicant’s education level the by seeing the facts and pressure that the Applicant lived through the Adjudicator should consider the Applicant’s late filing his Appeal and at least conduct an oral hearing to understand the matter.

7. An Oral Hearing is a right of every Appellant. But here the Applicant’s Appeal was rejected without any oral hearing. This is taken away the rights from the Appellant which is unfair and inhuman.

8. The Applicant’s Notice of Decision also provided to him in English language which is not the Applicant’s language and he don’t even know how to read or write English the how the Applicant write the Appeal form quickly.

9. There were no lawyer was provided to the Applicant during his Appeal filing.  So it is more difficult for him to understand and write the Appeal form.  Which the Adjudicator failed to put in account.”       [sic]   

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.

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