Mssl v. Director of Immigration and Another

HCAL 211/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 211 OF 2015

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J U D G M E N T

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1.The applicant’s CAT claim for protection from refoulement to Sri Lanka was dismissed by the Director of Immigration on 14 March 2012 and his petition filed on 29 March 2012 of the Torture Claim Appeal Board (“TCAB”) was also dismissed by the Adjudicator on 4 May 2012. On 3 November 2015, the applicant by a Form 86 shortly applied for judicial review against the two decisions and an extension of time to do so. This Form 86 was filed three years and eight months after the Director’s decision and three years and five months after the Adjudicator’s decision. This court granted leave on 18 January 2016 to the applicant to apply for judicial review on an ex-parte basis.

2.Ms Tong has helpfully provided a chronology of events leading up to the ex-parte application attached to her written submissions.  At the inter-partes hearing, Ms Tong on behalf of the 1^st respondent sought to set aside the leave granted to the applicant to apply for judicial review on the grounds of delay.  This court directed that this summons to set aside be heard together with the substantive judicial review application.

Summons to set aside

3.It is not disputed that the respondent has a right to apply to set aside leave at an inter-partes hearing.  Ms Tong pointed out correctly that an application for leave to apply for judicial review must be made promptly and in any event within three months from the date when grounds for the application first arose unless the court considers that there is good reason to extend time.  The burden is on the applicant to establish that he has good reason for time to be extended.

4.Under section 21K(6) High Court Ordinance (Cap 4) where there has been undue delay in making the application for judicial review, the court may refuse to (a) grant leave for the making of the application or (b) any relief sought on the application, if it considers that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of any person or would be detrimental to good administration.

5.As Ms Tong pointed out the relevant principle has been set out in Re Thomas Lai [2014] 6 HKC 1 where the court having reviewed relevant Hong Kong and UK cases had summarised the principles to be applied in the following way (see para 43-45 in the judgment of G Lam J):

(1) While in the public law field, it is essential that the court should scrutinise with care any delay in making an application, the provisions of Order 53 r 4 RHC and section 21K(6) HCO are not intended to be applied in a technical manner.  As long as no prejudice is caused, the court will not rely on those provisions to deprive a litigant who has behaved sensibly and reasonably of relief to which he is otherwise entitled;

(2) However, unless a disciplined approach to applications for judicial review out of time was taken, there was a real risk that public administration will be unduly disrupted and policies and decisions put into uncertainty for many months after they have been made and acted upon; and

(3) What may constitute a good reason for extending time could not be defined.  In most cases, this would be a “multi-faceted question”, the answer to which would depend on the circumstances of the case. The following factors were likely to be of significance (but not exhaustive):

a. The length of delay: the longer the delay, the more cogent the reason has to be for extending time.

b. Explanation for the delay: while Order 53 r 4(1) RHC requires a good reason for extending time, rather than a good excuse for the delay, it is common sense that the presence of a credibly valid explanation for the delay will strengthen, and conversely the absence of any acceptable explanation will weaken, the applicant’s request for what is after all an indulgence to be granted to him in the court’s discretion.

c. The merits of the substantive application: although merits of the challenge of the administrative decision may be a significant matter to be taken into account, it is by no means the sole criterion.  Where an applicant is many months out of time, or if the orders sought would lead to “no practical benefit”, leave may be refused “however strong the complaint might otherwise be” (see Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676 per Litton NPJ at p 693B-C).  An applicant who sleeps upon his right may be barred from pursuing his rights in judicial review even though he may have a meritorious case (see Law Chun Loy v Secretary for Justice (unreported, HCAL 13/2005 per Hartmann J at para 13).

d. Prejudice:  The question of prejudice has two sides: the prejudice to the applicant if time is not extended, and the prejudice to the respondent and to public administration if a challenge is allowed to proceed out of time.

e. Questions of general public importance: whether the application raised the questions of general public importance, and whether those questions are likely to have to be resolved by the court in any event.

6.These principles were applied both recently by the Court of Appeal in AW v Director of Immigration [2016] 2 HKC 393 (per Kwan JA at para 23-28), where it was held that such principles were no less applicable to cases involving claims for humanitarian protection or involving fundamental rights (see per Kwan JA at para 35; per Lam JA at para 1).

Delay

7.It cannot be disputed that in this case the length of the delay is very substantial as Ms Tong pointed out.  The Form 86 was filed three years and eight months after the Director’s decision and three years and five months after the Adjudicator’s decision.  The applicant’s affirmation and his Form 86 gave reasons for the delay which are: (i) time was taken to obtain legal aid; (ii) time was taken in waiting for the judgment from Ubamaka v Secretary for Security (2012) 15 HKCFAR 743, C v Director of Immigration (2013) 16 HKCFAR 280 and ST v Betty Kwan [2014] 4 HKLRD 277; (iii) time was taken in waiting for the implementation of the USM and (iv) alleged difficulty in taking instructions from the applicant due to his health condition.

Time taken to obtain legal aid

8.G Lam J in Re Thomas Lai (supra) said it is incumbent upon the applicant to show that he exercised due diligence in making and processing the application for legal aid and it is incumbent upon the applicant to provide a full chronology to be verified or confirmed by the relevant legal aid officer.  In this case the applicant has failed to do so, and, in any event as Ms Tong pointed out, the applicant received his legal aid offer on 27 July 2012.  The legal aid certificate was issued to the applicant on 7 September 2012 and Krishnan & Tsang were assigned as solicitors of the applicant on the same day and counsel was assigned on 27 September 2012.  However, the Form 86 was filed only on 3 November 2015 i.e. over three years later.  So it is clear that the delay was not caused by the obtaining of legal aid.

Time spent waiting for other judgment

9.The law is clear that a change in the law or understanding of the law cannot justify an extension of time except in exceptional circumstances (see Tsui Kin Kwok Johnnie v Commissioner of Police, HCAL 50/2009; and Lam Chi Wai v Commissioner of Police, HCMP 311/2010).  As Ms Tong submitted the judgment of the CFA in Ubamaka and of the Court of Appeal in ST were handed down the latest by 26 June 2014 but the Form 86 was only filed by the applicant on 3 November 2015.  The decisions in these cases in fact had turned out to have no material relevance to the grounds for judicial review put forward by the applicant in his Form 86 and as the Court of Appeal said in AW v Director of Immigration supra, there is no reason why the applicant could not have filed the application and later seek to add further grounds in light of subsequent decisions (see per Kwan JA at para 44).  There is also in this case no explanation forthcoming from the lawyers representing the applicant for the delay.

10.There is no merit whatsoever in the applicant’s excuse for his delay to say that he was waiting for the implementation of the USM.  For the USM was fully implemented in March 2014 and the applicant only began the present proceeding in November 2015.

11.As for the alleged difficulty in taking instructions from the applicant because of his health condition that was never particularised as to how the difficulty would have affected the filing of the Form 86, as Ms Tong pointed out, the legal team of the applicant would have all the relevant documents with them and would have enabled them to prepare the Form 86 without any detailed instructions from the applicant at that time. So again I see no merit in this explanation for the delay.

12.I find that for the above reasons and having had the assistance of the chronology submitted by Ms Tong, I set aside the ex-parte leave granted to the applicant to apply for judicial review on the grounds of delay. As I have said, the applicant had failed to provide any good reasons for this lengthy delay.

13.I have also considered whether the applicant has any merit in this application for judicial review that would justify this court granting leave to him for judicial review notwithstanding the substantial delay.

14.I agree with Ms Tong that in any event this court need not be concerned with the underlying merits of the applicant’s judicial review as the issues relating to his torture claim will inevitably be considered under the USM.  I pray in aid the cases referred to by Ms Tong including AW v Director of Immigration, HCAL 91/2013 at para 25-36 per P Li J which was upheld by the Court of Appeal in CACV 63/2015 per Kwan JA at para 53-67.

15.As Ms Tong pointed out, the government in response to the Ubamaka judgment of the CFA implemented the USM on 3 March 2014 to process non-refoulement claims lodged by persons without a right to enter and remain in Hong Kong against removal to any country on all applicable grounds including (i) risk of torture under Part VIIC of the Immigration Ordinance Cap 115; (ii) risk of CIDTP under Article 3 of the Hong Kong Bill of Rights; and (iii) persecution risk with reference to the non-refoulement principle under Article 33 of 1951 Convention relating to the status of refugees and its 1967 Protocol (“persecution risk”).  Then as Ms Tong argued, this court should be slow and granting leave to the applicant to commence judicial review or an extension of time to do so for the purposes seeking a remedy that would not serve any practical/useful purpose because in the present case the only substantive relief sought is for an order of certiorari to quash the Adjudicator’s decision in respect of his CAT claim and to remit back to the Director or another Adjudicator for determination which will serve no useful purpose as:

(1) the applicant will be assessed on his BOR 3 risk and persecution risk claim based on information and documents submitted on his CAT claim;

(2) given the wider scope of the CIDTP ground as there is no need to establish involvement of the state or public official or to consider acquiescence; if the applicant’s BOR 3 risk and persecution risk claims are rejected, there is little chance he would succeed in his CAT claim; and

(3) if the applicant’s BOR 3 risk and persecution risk claims are rejected, he may petition to the Adjudicator and if such petition is also rejected he may commence judicial review in respect of such decisions.

16.The judgment by the Court of Appeal in AW is binding on this court and as the Court of Appeal had said in that case “no useful or meaningful purpose would be achieved in granting an extension of time to the applicant to commence judicial review” would apply in the present case for the same reason.

17.As Lam VP pointed out in Re RI, HCMP 3295/2013:

“6. ......Even if the applicant were successful on his intended challenge based on the refusal of the adjudicator to grant him any oral hearing, it would only end up with an order of mandamus directing the adjudicator to hear the matter afresh with an oral hearing. But he can already have the merits of his claims heard by, first the Director, and on a petition by an adjudicator, in the USM proceedings. If he fails in the USM proceedings, it is difficult to see how he could succeed in his CAT claim. Viewed thus, the challenge based on the lack of oral hearing in the context of state involvement or acquiescence is a matter of little moment.”

18.Therefore in light of the above, I cannot see that present judicial review would serve any “useful/meaningful purpose”.

Relevant background

19.If it is interesting to note from Ms Tong’s submission that the applicant had overstayed in Hong Kong since 8 February 2005, he was subsequently arrested and convicted of the offence of breach of condition of stay by overstaying on 11 April 2005.  On 31 May 2005, the applicant lodged his tortures claim.  Between the applicant’s torture claim application and the suspension of the screening of torture claim in December 2008, the applicant had a total of 28 assessment interviews and when the “enhanced mechanism” began in December 2009, the Immigration Department in February 2010 informed the applicant by letter that the screening of torture claim had resumed and on 4 October 2011 the Immigration Department had arranged the briefing session with the applicant to explain to him the screening process and had given various documents to the applicant including a blank questionnaire for persons who have made claim under Article 3 of the Convention against torture and other cruel inhuman or degrading treatment or punishment.

20.It was stated clearly in those documents that the questionnaire had to be handed back to the Director within 28 days and if he did not do so without reasonable excuse, his claim may be rejected.  Shortly after 21 October 2011 the duty lawyer service (“DLS”) appointed Mr Peter Barnes to represent the applicant in his torture claim.  The applicant repeatedly requested for extension of time to submit his completed questionnaire, the only reason given was that he had to obtain further information and documents from his country of origin.  Finally in a letter from DLS to Torture Claims Assessment Section (“TCAS”) of the Immigration Department dated 2 February, it’s stated that Mr Peter Barnes had withdrawn his representation on 1 February 2012 and the new duty lawyer, Mr Sutherland, was assigned and therefore a request was made for extending the time to provide the questionnaire for another six weeks.  Immigration Department then allowed a time extension until 20 February 2012 but again in February 2012 DLS again asked for another six weeks extension.  As it was considered that ample time had already been given to the applicant, the TCAS proceeded with the assessment of the applicant’s torture claim and after considering all the relevant documents including the applicant’s written submission, the claim was rejected by the case officer.

21.The applicant’s Notice of Petition dated 28 March 2012 was submitted to the Security Bureau under cover letter from the DLS dated 29 March 2012.  However, under section 2 of the Notice of Petition headed “grounds of petition”, no ground was provided by the applicant and it was simply stated “to follow”.  The applicant also failed to provide any supporting documents with his petition.  On 3 May 2012, the DLS sent a letter to the petition team of the Security Bureau saying that they will be arranging conferences shortly for the purpose of settling the questionnaire, however, no definitive date as to when the questionnaire would be submitted to the petition team, nor was there any reasons provided for the delay.  On 4 May 2012, the written reasons of Ms Betty Kwan, Adjudicator, (Torture Petitions) (the 2^nd respondent) were sent to the applicant.  The learned Adjudicator pointed out that the applicant had failed to provide any explanation as to why no grounds of petition were provided and why the Questionnaire was late.  Thus, the applicant had failed to provide sufficient information to enable a consideration of the petition on the merits of the case, so in all the circumstances, the learned Adjudicator said that the NOD made by the Director must stand.

Judicial review

22.The legal principles which applied had been laid down in Secretary for Security v Prabakar (2004) 7 HKCFAR 187 and TK v Jenkins [2013] 1 HKC 526 in that it is not a function of this court sitting on an appeal to decide on the merit although it will subject the relevant decision of the Director/Adjudicator to “rigorous examination and anxious scrutiny to ensure that high standards of fairness had been met”.  As Lam J observed in TK v Jenkins at para 87:

“In the context of a judicial review of a decision of an Adjudicator, the crucial issues are: whether the Adjudicator committed any error of law in his interpretation of the CAT; whether the procedures adopted at the hearing of the petition satisfied the high standard of fairness; whether the substantive decision satisfied the enhanced Wednesbury test.”

23.In this case, it is clear from the material before this court that the applicant had been granted many extensions of time and was given ample time to submit his questionnaire (over four months before the Director’s decision and over six months before the Adjudicator’s decision).  I agree with Ms Tong that since the questionnaire only required the applicant’s personal particulars and an account, truthfully, of why he had feared torture in his home country, the applicant had already been given more than sufficient time to complete the questionnaire and it is also noted that the applicant was all along legally represented, however, no credible explanation had been provided for the delay.  Therefore, the Director/Adjudicator cannot be blamed for proceeding with the determination on the material available before them and their action cannot possibly be said to be Wednesbury unreasonable, irrational or otherwise procedurally unfair.

24.In relation to the first tier screening, it is also to be noted that the only two reasons given by DLS for the request of extension of time were that the applicant was obtaining further information/documents from his country of origin and that there was a change of lawyer acting for the applicant.  It is clear from the correspondence that ample time was in fact given to the applicant to submit the questionnaire after the change of lawyers on 2 February 2012 as an extension of time for him to submit his questionnaire was granted to 20 February 2012.  The letter from the TCAB dated 29 December 2011 had pointed out to the applicant that he would be given a reasonable opportunity to supplement further information to his claim (if necessary) even after the submission of the questionnaire.

25.As for the second tier screening, the applicant similarly provided no grounds for the petition and provided no explanation for the delay in submitting the questionnaire or when the questionnaire would be provided, therefore, the Adjudicator was acting fully within her rights to proceed to determine the petition on the information available.  It is worth reiterating here the citation referred to by Ms Tong from the case Re Bikramjit Singh, unreported, HCAL 68/2012 per Andrew Chan J at para 21 and applied in Re Rafaqat, unreported, HCAL 119/2012 per Au J at para 47 that “it cannot be right to suggest that the less the claimant volunteers to provide, the more onerous a duty be imposed on the Adjudicator”.  And in both those cases, the applicants had failed to provide relevant material including the questionnaire at the first tier and the Adjudicators proceeded to decide the petitions on the papers and the court held that there were no proper grounds to challenge the Adjudicators’ decisions.

26.As to the allegation that the Adjudicator was wrong in not giving the applicant an oral hearing, the general principle is as set out in the case of ST v Betty Kwan & Anor supra by the Court of Appeal at para 20-36 and it should be noted that in para 14.1 of the Practice Directions (August 2011 version), it is stated that the Adjudicator:

“14.1 ......after considering the Notice of Petition and relevant information available including any further particulars which may have been furnished by either party, the Adjudicator is satisfied that the petition is of such a nature that it can be justly determined without an oral hearing, it may dispense an oral hearing and proceed to decide whether or not allow the petition. He will make a decision on the petition by way of a paper review without further notice to any party......”

27.The Adjudicator in this case had not committed any procedural irregularities as there was no real issue of credibility.  The claim was rejected by the Director on the basis that the applicant had not provided sufficient information to substantiate his claim as to why and how he would be in danger in his country and thus the Adjudicator’s review of the Director’s decision had not involved any resolution on the facts or issues of credibility and Au J concluded in Re Rafaqat that it cannot be right that the Adjudicator in the second tier of the screening process was required as a matter of fairness to conduct an oral hearing to ask more question so as to enable the applicant to establish his CAT claim by reasons that the applicant had decided not to do so at the first tier of the screening process and had also failed to provide any grounds of petition without credible explanation.

28.Finally, this court wishes to point out, as other courts have done so, particularly in applications of this nature where a large amount of material are exhibited in support of the application, is unwarranted and a waste of time and resources as Zervos J in Mallawa Arachchige Amitha & Anor v Wesley Wong & Anor,unreported, HCAL 1/2014 said at para 12-13 when referring to the grounds and materials filed in support of the application filed before him that these should be “tailored to address the relevant matters and issues, and not be simply the filing of all materials relevant to the case as a whole”.  And, as pointed out by Ms Tong, despite the voluminous number of documents and exhibits, the applicant’s skeleton submissions only refers to six exhibits in total and the core issue in this case is whether the applicant was given sufficient time to prepare the questionnaire and the grounds of the petition and whether it was procedurally unfair or unreasonable for the Director/Adjudicator to render their respective decisions without such questionnaires/grounds having been provided by the applicant.  Therefore a proper focus by the legal representative of the applicant on the core issue would have saved this court’s time in having to wade through a voluminous number of exhibits and cases submitted.

29.In light of the above reasons, I therefore refuse the grant of any substantive relief to the applicant because of the substantial delay in taking out this judicial review proceeding.  For not only will it be detrimental to good administration, it would also serve no useful purpose as the applicant’s case will be screened under the USM.  I therefore make an order in terms of the set-aside summons.  I would also add that, also for the above reasons, I would have also dismissed the application for judicial review had I granted leave to the applicant to proceed with his judicial review in spite of the delay.

Mr Mark R C Sutherland, instructed by Krishnan & Tsang, for the applicant

Ms Sara Tong, instructed by the Department of Justice, for the 1^st respondent

The 2^nd respondent was not represented and did not appear