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HCAL325/2017
[2018] HKCFI 71
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No.325 of 2017
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Mr. Gurdev Singh |
Applicant |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following;
Order by the Honourable Mr. Justice Li :
Leave to apply for Judicial Review refused.
Observations for the Applicant:
1. The applicant is from India. His home village was at The Dasuya, Hoshirarpur, Punjab. He was born on 16 April 1968. He received education for 11 years. He is married with two children. They were living at Khiyala Bulanda, District Hoshirarpur, Punjab. His parents were also in India.
2. The applicant joined the Indian Amy for 17 years until 2004. He then worked as a construction site worker until 2015. He was Sikh by religion. He supported the Congress Party but did not hold any official position.
3. He feared that he would be harmed or killed by Gurdeep Kaur, Jagmohan Singh and their group (‘GK group’) as they tried to make him confess for tearing the Sikhs’ holy book.
4. The applicant sought to enter Hong Kong from Macau on 22 November 2015. He told the immigration officer that he was a visitor. He produced a return air ticket to Delhi. He was refused entry. On 25 November 2015, he came to Hong Kong from Macau again. He was refused entry. He lodged his claim on the same day. He was then detained at CIC. He was granted recognisance on 14 March 2016.
5. On 5 February 2016, the Director of Immigration refused his claim on all grounds. The main reasons being that:
a. The GK group only beat him up and had no intention to kill. They ran away when his neighbour and passers-by gathered. The applicant only sustained minor injury which did not satisfy the minimum level of severity.
b. The applicant insisted that he had not torn the holy book despite the assault.
c. As a member of the respectable Sikh Committed in his village. The applicant never sought assistance from it to clear the allegation.
d. There was no evidence that his assault by the police officers was condoned by higher authorities or the government. In fact, he never made any complaint about this police misconduct.
e. There was no evidence of any involvement, consent or instigation by any government authorities or political parties.
f. At the Delhi Airport, he paid US$350 bribe and was released by the immigration officer who alleged that he was on the wanted list. There was no evidence that it was linked to the tearing of the holy book.
g. There was reasonable state protection. The relevant COI indicated that the police force was under reform with positive results. His maltreatment by the police in one station was not evidence of systematic misconduct of higher authorities or the government.
h. He could relocate to New Delhi. The GK group could not locate him given the large population there.
6. The Adjudicator found that the applicant was out of time in filing his appeal. The Adjudicator pointed out that the last date should be 26 February 2016 but the applicant only filed the notice of appeal on 23 December 2016. The Adjudicator rejected the reasons for late filing and disallowed late filing on 25 May 2017. The reasons were as the following:
a. The applicant alleged that he could not receive the Director’s decision as he changed his address. However, he should be in detention at the time of the decision was served on him.
b. Even accepting the change of address, the applicant claimed that he only learned about the decision when he reported to CIC. However, he only filed his notice in December 2016, his reporting time could not be such a long period from the date of his initial release.
c. The applicant had the duty to update his address and he failed to do so.
d. The Adjudicator also doubted the credibility of the applicant as to the background giving rise to the departure from India. The Adjudicator opined that there was reasonable relocation.
Leave for Judicial Review
7. The applicant filed his Form 86 on 26 June 2017.
8. This court fixed a hearing on 17 August 2017. The notice of hearing was sent to his address as set out in the Form 86 and Form 8 (recognisance form) by ordinary and registered post. The notices were returned as both addresses were incomplete. The applicant was absent on the hearing day.
9. Under s. 37ZA (2), Cap. 115, the applicant had a duty to ensure that all his contact address and phone numbers should be updated promptly. There was no evidence that the address on the Form 86 was inaccurate.
10. In the circumstances, I exercise the power under O.1B r.1(2)(l) to consider the leave application without a hearing despite the applicant indicated otherwise by virtue of O 53 r3(3).
Conclusion
11. In the applicant’s affidavit, he complained that he was not given legal representation on appeal to TCAB. The applicant was assisted by the Duty Lawyer when his claim was processed by the Director. He did not file the appeal to TCAB on time. According to his Form 8, he was released on 14 March 2016. He should be in detention when he received the decision and during the period when he should have filed a notice of appeal.
12. The applicant had the assistance from the Duty Lawyer Services to prepare for the NCF. The content must have been explained to him orally in his language by an interpreter although it was not translated in writing.
13. In failing to lodge an appeal in the TCAB, the applicant had not exhausted alternative procedures to challenge the decision of the Director. There was no exceptional circumstance to justify his conduct. This alone is sufficient to refuse the leave application.
14. Having considered all the information above, I agree with the findings of the Director of immigration and the Adjudicator. The applicant had not exhaust all revenue of appeal. I do not find any error in law or in procedure. I do not find any public law ground either.
15. In my judgment, the Applicant’s claim is not reasonably arguable. There is no realistic prospect of success. I refuse leave for judicial review.
Dated 15 January 2018.
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(Benjamin Chan)(Mr) |
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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); |
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Sent/Handed to the Applicant/ the Applicant’s solicitors on
Mr. Gurdev Singh
The Applicant, in person |
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Sent/Handed to the Respondent/
the Respondent’s solicitors / such interested parties as may be directed by the Court / the interested parties’ solicitors on
15-1-2018
1st Respondent: Torture Claims Appeal Board
2nd Respondent: Director of Immigration
Department of Justice,
Senior Assistant Law Officer
(Civil Law), (Civil Litigation Unit )2
6th floor, Main and East Wing, Justice Place, 18 Lower Albert Road, Central, Hong Kong.
(Fax : 35430389)
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| b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and |
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Applicant’s ref. no: |
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Respondent’s ref. no.:
1st Respondent:
USM 5638/16/12/285/IN1163
2nd Respondent:
QA T/C 2612/15
(Formerly RBCZ/537/15) |
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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Form CALL-1
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