Karamjit Singh v. Torture Claims Appeal Board and Another

HCAL 250/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 250 OF 2015

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J U D G M E N T

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1.This is an application for leave to apply for judicial review against the decision of the Torture Claim Appeal Board (hereinafter called “the Board”), the Director of Immigration (hereinafter called “the Director”) for dismissing the claim of the applicant made under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).

BACKGROUND

2.The applicant is an Indian national.

3.He arrived in Hong Kong from Macau on 6 February 2014 and was refused to land.  He filed a non-refoulement claim.  He alleged that after his whole family changed their support for SAD to CP and he actively helped others to change to vote for CP, he had encountered no less than 9 incidents that he was harassed, bullied, assaulted.  He engaged in a fight with M, a supporter of SAD. Thereafter, M and others threatened to kill him and on one occasion someone driving a private car rammed into his motorcycle causing him to fall and sustain injuries.  He was also abducted and taken to a building where someone dipped his head into a tub of water, calling him a cheater for joining CP.  When he regained consciousness the next morning his whole body was covered in bruises.  He fled to his brother-in-law’s house for a couple of months and when he returned home M went and confronted him.  He fled to another village which was an hour’s journey away but M kept harassing him on the phone.  In January 2014 he departed from India for China, and then to Macau and to Hong Kong.

4.The torture claim was rejected by the Director on 10 July 2014.  No Notice of Appeal was filed until 14 October 2014.  Since the applicant did not append his signature, he was asked to do so.  He duly signed the Notice on 24 October 2014.  The adjudicator refused his application for late filing of the Notice and went on to dismiss his appeal on 14 November 2015 without any oral hearing.

5.On 16 March 2015 the applicant applied for legal aid for judicial review.  Legal aid was offered to the applicant on 2 July 2015, limited to filing of Form 86.

6.The Notice of Application (Form 86) for leave to apply for judicial review was filed on 15 December 2015.  By then 13 months have elapsed since the dismissal of his claim by the Board.  The applicant now applies for an extension of time on grounds that there are good reasons for extending the 3 months time limit under O 53 r 4.

SUBMISSION

The applicant

7.At the hearing, the applicant was represented by Miss Queenie Lau of Counsel.  She submitted that the decision of the adjudicator was at least reasonably arguable that:

(1)   The adjudicator erred in proceeding to consider the applicant’s appeal substantively at the same time when he refused the notice of appeal filed out of time, as the refusal is a preliminary decision without a hearing incompatible with a substantive appeal which is a rehearing and which as a matter of rule would mostly require an oral hearing;

(2)   The adjudicator erred in dealing with the appeal without an oral hearing; and

(3)   If it was open to the adjudicator to consider the substantive merits of the appeal at the same time, his reasons were totally inadequate.

8.Against the decision of the Director:

(1)   The Director erred in assessing the risk faced by the applicant if he were to return to India;

(2)   Failure to fully consider the COI reports in assessing risk to the applicant if refouled and to give reasons;

(3)   The Director erred in his consideration of state acquiescence;

(4)   The director erred with regard to his assessment of “persecution risk”; and

(5)   No proper basis for consideration of internal relocation.

Delay

9.Counsel for the applicant agreed that there had been a substantial delay in the filing of the Notice of application for leave to judicial review from the Board decision.  Counsel, however, submitted that there are good reasons for an extension of time to be granted.  A chronology of events explaining the delay was set out as follows:

(1)   Applicant submitted application for legal aid on 16 March 2015;

(2)   Legal aid was offered on 2 July 2015 for judicial review limited to filing of Form 86;

(3)   LAD received applicant’s acceptance of legal aid on 17 July 2015;

(4)   Solicitors were assigned on 22 July 2015;

(5)   Form 86 was finalised and filed on 14 December 2015; and

(6)   Counsel was assigned on 3 February 2016.

10.Time and again, the courts have insisted in the promptitude in the applications for leave to apply for judicial reviews.  Such leave applications shall be made not later than 3 months from the date of the challenged decision, O 53 r 4(1) of the Rules of the High Court (Cap 4A).  The court may on the basis of inordinate and inexcusable delay grant leave unless the applicant can demonstrate good reason.

11.Hartman J (“as he then was”) said in Law Chun Loy v Secretary for Justice, HCAL 13/2005:

“13. . . . ‘sleep on your rights and, even if your cause is meritious, you may find the gates locked against you.’ . . . ”

12.In X v Torture Claims Appeal Board and Director of Immigration, Zervos J said:

“12. . . . Where the delay is inordinate and inexcusable a court is likely to refuse to extend time. The onus is on the claimant to show that there is ‘good reason’ for extending time for applying for judicial review. This essentially means that it is too late to deal with the matter because it is likely to have adverse consequence to good administration but this depends on the gravity of what is at stake and an appropriate assessment of likelihood of the consequence being adverse to good administration.

13. . . .  Much depends on the particular facts and circumstances of the case as to whether there is good reason to extend time, although key considerations would include the nature of the interest at stake and the significance of the issue in relation to it, and the import that a judicial review would have in resolving the dispute in relation to the issue in question.”

13.In AW v Director of Immigration and Anr, CACV 63/2015, the Court of Appeal stated that claims for humanitarian protection are no special category and the principles and approach stated in Re Thomas Lai [2014] 6 HKC 1 relating to the applications for extension of time for judicial review are applicable.  In considering the “multi-faceted question” whether there is a good reason for extending time, the following factors are taken into account.

Length of the delay and the explanation

14.It was submitted on behalf of the applicant that he was released from the Castle Peak Bay Immigration Centre (“CIC”) 2 weeks after the filing of the Notice of Appeal/petition.  As the adjudicator’s decision was sent to CIC, he was not made aware of that until in March 2015 when he “coincidentally” attended solicitors’ office (M.C.A. Lai & Co, subsequently acted for him after legal aid was granted some 4 months later) with a friend.  He was accompanied by a staff of the solicitors to retrieve a copy of the decision from the Board.

15.Miss Lau of Counsel informed the court that M.C.A. Lai & Co had advised the applicant as early as March 2015 that leave application for judicial review was already out of time.  Nonetheless, no Form 86 was filed forthwith.  The applicant waited for legal aid to be granted.  Counsel told this court that the applicant did not have the means to file Form 86 but he made no attempt to apply to Registrar for a waiver of the filing fees.  Solicitors were assigned in July 2015, but the Form 86 was not filed until 14 December 2015.  Counsel explained that the solicitors were told that the Questionaire, record of Interview and Notice of Director’s decision were all misplaced by the applicant, and whilst they had to write to the Immigration Department to obtain those documents, the applicant was incommunicado until 14 December 2015.

16.Delay caused by application for legal aid has already been shown in many cases as not constituting good reasons; neither could the claim by the applicant to have misplaced the relevant document causing solicitors to have to write to retrieve them.  I see a totally lax attitude on the part of the applicant in pursuing his leave application which is not inconsistent with his late filing of Notice of Appeal against the Director’s decision to the adjudicator.  He allegedly misplaced important documents, failed to leave means for solicitors to contact him promptly should the need arise, and no initiative was taken by him to contact solicitors either.  All in all, the applicant has not diligently pursued his claim.

17.The matter did not stop here.  It is indeed interesting to note that although solicitors spotted in March 2015 application for leave to judicial review was already out of time, the original Form 86 drafted by them and filed with the court some 9 months later made no mention of any application for extension of time.  The amended Form 86 was only filed about a week prior to the hearing.

18.Whilst the delay may be partially attributable to the applicant’s lawyers, the applicant remained largely responsible.  In Law Chun Loy , Hartman J remarked that whilst the applicant there must bear personal responsibility for at least five months out of the some 14 months delay, he also said that:

“33. . . . even if the applicant was not found to be at fault for any portion of the delay, in the present case, in my view, it is plain that an overall delay of some 14 months was detrimental to good administration.”

19.I find that there was undue delay in this application for leave.

Detriment to good administration

20.What is or is not detrimental to good administration must depend on the circumstances of each individual case.  The Court of Appeal in AW agreed with the judge’s assessment that:

“69. . . .

‘34. The volume of cases under CAT claim is already very large. The time and resources spent on these cases is immense. It is to the interest of all parties that these cases should be disposed of promptly and efficiently. This is the interest of good administration in this case. Unnecessary or unmeritorious applications should not be allowed to dwell on causing additional pressure to the administration of the Immigration Department.’

. . .”

21.The Court of Appeal noted the statistics quoted by Zervos J in HKSAR v Vu Thang Duong & Anr and remarked that “one does not have to look to the additional material sought to be placed before this court, as there is information on this in the public domain”.  Kwan JA said:

“I agree with Ms Tong it would clearly be detrimental to good administration to require the primary decision maker to assess the same issues twice, particularly given the large number of pending torture claims to be processed.”

22.The same applies in the present case.  To allow this case to dwell on is prejudicial to the good administration of the Immigration Department.

Merits of the substantive application and whether the application raises questions of general public importance

23.Counsel for the applicant, whilst admitting that had the adjudicator only refused late filing of appeal and stopped there, there would not be any arguable grounds for judicial review.  She submitted that there had been increasing appeals disposed of by the Board in similar cases where the adjudicator dealt with the appeal substantively at the same time when refusing filing of notice of appeal out of time, so this is a question of general public importance to have this issue clarified.  The facts and general background of each case is different.  I am not going to deal with merits of this application, suffice it to say that it is clear from the reasoning of the adjudicator in the present case that having refused filing of notice of appeal out of time on the basis that the applicant had been given 8 months to come up with the documents he alleged he had yet to locate, nothing could be gained by convening an oral hearing.  That is why he proceeded to consider the case afresh but after doing so, he came to the same view as the Director.

24.I am not persuaded that the present case involves any questions of general public important so great as to outweigh the good administration factor.  I am not persuaded that there are good reasons for extension of time. The application for leave to apply for judicial review is refused.

Miss Queenie Lau, Counsel instructed by M.C.A. Lai & Co, assigned by DLA, for the applicant