RE KARAMJIT SINGH

CACV 78/2018

[2018] HKCA 460

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 78 OF 2018

(ON APPEAL FROM HCAL 594 OF 2017)

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J U D G M E N T

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Hon Barma JA (giving the Judgment of the Court):

1.  This is the applicant’s appeal from the decision of Deputy High Court Judge Woodcock dated 16 March 2018 refusing him leave to apply for judicial review.

2.  The applicant is an Indian national.  He left India for Mainland China on 23 January 2014.  He tried to enter Hong Kong twice but was refused permission to land.  Then, on 6 February 2014, he tried to enter Hong Kong for a third time via Macau, through the China Ferry Terminal Immigration Entry Point.  On this occasion, he lodged a non-refoulement claim. He was then transferred to the Castle Peak Bay Immigration Centre for detention, and was released on recognizance in May 2014.

3.  The applicant’s non-refoulement claim was based on his fear that, if he returned to India, he would be harmed, or even killed, by the village head, the village head’s son, and the members of Shiromani Akali Dal (“SAD”).  The fear arose from the fact that he was a member of SAD’s political rival, the Indian Congress Party (“CP”).  The applicant claimed that the village head, his son, and members of SAD tried to force him to leave CP and join SAD, but he refused.  His fear also arose from an incident where he slapped the village head’s son.

4.  By a notice of decision dated 10 July 2014, the Director of Immigration rejected the applicant’s claim.  The director did not consider that, even accepting that the facts as alleged by the applicant did happen, there was any indication that any of the village head, his son, or the SAD people had a real intention to harm or kill him.  The low level of ill-treatment in the past indicated a small future risk of harm upon his return to India.  The director also considered that the availability of state protection and the viability of internal relocation would lower or negate the perceived risk.   The director’s decision covered the BOR 3 risk [1], the persecution risk [2], and the torture risk [3].

5.  The applicant lodged an appeal/petition to the Torture Claims Appeal Board, but, on 14 November 2014, the appeal was dismissed on the ground of late filing of the notice of appeal/petition.

6.  By a notice of further decision dated 30 December 2016, the director also assessed the applicant’s claim based on the BOR 2 risk [4], and determined the claim against him.

7.  Dissatisfied with the director’s further decision, the applicant petitioned to an adjudicator of the Non-refoulement Claims Petition Office.  The notice of appeal/petition was however not lodged within the stipulated time limit.  The applicant explained in the petition that the delay was due to the change of his home address and that the director’s further decision was sent to his old address.  The adjudicator was told that, when the applicant received the mail from his old address, the deadline for lodging an appeal had already expired. The adjudicator did not accept the applicant’s explanation, and commented that the applicant deserved no sympathy as he had not reported the change to the Immigration Department, as he was obliged to do.  The adjudicator also took the view that there was no substance in his grounds as stated in the petition.  The adjudicator dismissed the applicant’s petition on 25 August 2017. 

8.  The intended application for judicial review was in respect of both the director’s further decision on the BOR 2 risk and the adjudicator’s decision dismissing the applicant’s petition on the ground of delay.  While the form 86 filed on 7 September 2017 contained no ground for seeking relief, the applicant in his supporting affirmation made on the same date advanced the following grounds for the intended application for judicial review:

(a)  the lack of legal representation;

(b)  the lack of language assistance;

(c)  the absence of reason for rejecting his BOR 2 claim;

(d)  the lack of communication from the Immigration Department in respect of his BOR 2 claim; and

(e)  the lack of fair hearing.

9.  After an oral hearing held on 1 March 2018, the deputy judge refused to grant leave for the applicant to apply for judicial review.  The reasons for refusal were set out in paragraphs 4 to 13 of the CALL-1 form as follows:

“4. The applicant has filed a notice of application for leave to apply for judicial review on 7 September 2017. He seeks leave to apply for judicial review against not only the adjudicator of the TCAB’s decision not to grant him an extension of time to file his petition/appeal late but also the Notice of Further Decision issued by the Director.

5. The applicant has sought to judicial review the Director of Immigration’s decision as well as the TCAB’s decision. In my view, this is not the right course of action to take. The applicant has already utilised the channel of appealing the Director’s decision to the TCAB; leaving aside the fact he was late in making an application. There should be no room for a judicial review of the Director’s decision. In any event, it is also an application made out of time, that decision was made nine months before this application. I will consider the applicant’s grounds for leave to apply for judicial review against the decision made by the adjudicator of the TCAB only.

6. In his affirmation, the applicant relies on five grounds, in the first ground, he complains of a lack of legal representation provided to him throughout his appeal process. He complains of a lack of interpretation service provided to him throughout the claim process, it seems at his beck and call. The third ground is a submission that the Director failed to give a reason for rejecting his BOR 2 claim.

7. The fourth ground is a failure of the Immigration Department to ensure he received their BOR 2 letters and a failure of the Department to telephone him to tell him of their decision. He was unaware he was obliged to update the Immigration Department when he changed addresses. The fifth ground is one of procedural unfairness where the adjudicator decided he had no substance to his application without a hearing which is a failure to adhere to a high standard of fairness.

8. There is no merit in the first ground; no authority from the higher courts have prescribed that an asylum seeker must have an absolute right to free legal representation at all stages of the proceedings. The applicant already had the benefit of legal representation in presenting his case to the Director including the presence of a lawyer at the interviews by an immigration officer. Thereafter, the duty lawyer service will continue to represent an applicant during his appeal if they are of the view that his appeal has merits.

9. Interpretation service has been provided to the applicant during interviews and at hearings. It could not be the intention of any authority laying down the principle of a high standard of fairness that it would include such a service at any time an applicant desired or required. There are no particulars to this ground and there is no merit in it.

10. The third and fourth ground relate to the Director and as I have said are not subject to this application but I will say that the Director has given reasons for rejecting the applicant’s BOR 2 risk in his Notice of Further Direction, he made clear reference to the reasons of his previous decision as well in so far as they are relevant. In addition, it is not reasonable for the applicant to expect the Director to telephone every applicant to ensure they have received correspondence.

11. More importantly to this application, I do not accept the applicant’s excuse that he was unaware that he was obliged to inform the Immigration Department that he had changed his correspondence address. The fact that he went personally to his old address to check if he had any letters indicated that he knew the importance of his correspondence. I agree with the adjudicator that it would not have been difficult to prove with documentary evidence that he had moved and changed correspondence addresses and prove when he moved. Without it, his excuse was a bare assertion.

12. The fifth and last ground suggests that the only reason the adjudicator rejected the applicant’s application for late filing was because he found there to be no merits in his grounds of appeal/ petition. A reading of the adjudicator’s decision will show this is not true. The adjudicator rejected the application for an extension of time after considering the applicant’s reason for the delay. He found it a bare assertion with no documentary evidence to support it when such evidence would not have been hard to submit. He found the applicant had a duty and obligation to report a change of address to the Immigration Department in view of his status in Hong Kong and he failed to comply with that obligation in a timelyfashion. He can blame no one but himself. The adjudicator added after those reasons, that he also ‘noted’ the grounds of petition and found there was no substance in them. I do not agree that this meant this was the reason he rejected the applicant’s application for an extension of time. There is no merit in this last ground.

13. None of the grounds put forward by the applicant showed any error of law by the adjudicator.  There was no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness.  The substantive decision was not Wednesbury unreasonable.  None of the grounds were reasonably arguable and there is no realistic prospect of success.  I refuse leave for judicial review.”

10.  In the notice of appeal filed on 28 March 2018, the applicant advanced the following grounds of appeal:

(a)  the deputy judge erred in finding that there was neither evidence of procedural unfairness nor failure to adhere to the high standards of fairness;

(b)  the applicant was unaware of his obligation to inform the change of his home address because the previous contact was mostly made via telephone;

(c)  since the applicant was given legal representation for his grounds based on other three applicable grounds, he should be given legal representation for his BOR 2 claim; and

(d)  the applicant considered that the director’s determination was not complete, and he should be given legal representation “throughout the determination, if not throughout the whole process”. 

11.  By a letter dated 3 April 2018, the applicant agreed that this appeal be heard by a two-judge court.

12.  Following the directions given by the Registrar of Civil Appeals, the applicant lodged his skeleton argument on 29 June 2018.  In addition to restating his grounds as set out in the notice of appeal, the applicant admitted in paragraph 6 of his skeleton argument that it was his own negligence that was the cause of his not informing the Immigration Department of the change of address.  The applicant added in paragraph 6 of his skeleton argument that even if he had received the notice of further decision, he would have been at a loss as there was no translation attached to it.

13.  We heard the appeal on 26 July 2018.

14.  In our judgment, none of the grounds of appeal has merits.  We agree with the adjudicator that the applicant’s explanation for delay was not a good one, and as noted above, he now accepts that it was due to his own negligence.  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.  That said, however, we note that the delay in this case was very short, being only some 6 days.  In such situations, the board should generally have regard to the merits of the case as disclosed by the available material, rather than simply dismissing the application for lateness.

15.  In this case, however, we are of the view that there is no merit inthe intended application, and are satisfied that the deputy judge has adequately dealt with the grounds in the intended application for judicial review.  We endorse the conclusion that there is no prospect of success in the intended appeal and leave for judicial review should be refused.  We would like to highlight four observations of our own.

16.  First, we note that all court documents (including the form 86, the supporting affirmation, the notice of appeal and the skeleton argument) were all written in English.  This indicates either that the applicant is familiar with the English language, or that he has access to, or is able to seek, such language assistance as he may need.  The supporting affirmation he made contained an interpretation clause, which means that he is able to seek language assistance to interpret the contents for his benefits.  There is no basis for us to accept that the lack of language assistance would jeopardize the rights of the applicant in this case. 

17.  Secondly, it lies ill in the applicant’s month to say that, because of the technicality of the contents and the absence of translation attached, he would be at loss in lodging an appeal against the director’s further decision without any language assistance.  As a matter of fact, despite the alleged technicality and the absence of translation, the applicant did lodge his appeal against the director’s further decision just on the date following his receipt of the decision. 

18.  Thirdly, there is no evidence before us that the applicant had approached the Duty Lawyer Scheme but was refused legal representation in respect of his claim under the BOR 2 risk.  There is no evidential basis for us to accept the bare assertion that the applicant was not entitled to legal representation under the Duty Lawyer Scheme in respect of his BOR 2 claim.

19.  Fourthly, throughout the whole process and up to this appeal, the applicant has never specified as to what additional information that he could have provided to the director for the assessment of his BOR 2 risk.  In our view, in the absence of any additional information, the director was perfectly entitled to proceed on the basis that the applicant’s BOR 2 risk was also based on the same primary materials relating to his other claims, bearing in mind that such primary materials were prepared and presented with legal representation.  On the facts of this case, we cannot actually see any additional basis for advancing a claim under the BOR 2 risk other than that already relied upon in respect of the BOR 3 risk, the persecution risk, and the torture risk.  We do not find anything amiss in the process.

20.  Having considered the applicant’s skeleton argument as well as the materials before us, we cannot see any error of law or procedure in the proceedings before the director and the adjudicator.  Nor is there any reasonably arguable basis to challenge the fairness of the process.  Determination of the merits of the non-refoulement claim is a matter for the director and the adjudicator (or the board, as the case may be), not the court.  As we have mentioned, we agree with the deputy judge that leave to apply for judicial review should be refused.

21.  For these reasons, we do not see any reasonable prospect of success in the intended application for judicial review, and dismiss the appeal accordingly.