Balraj Singh v. Torture Claims Appeal Board

HCAL 225/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 225 OF 2015
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J U D G M E N T

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1.The applicant is an Indian national who was born in 1968 in India. He came to Hong Kong on 4 April 2014 and made a non-refoulement claim on the same day. His claim was rejected by the Director of Immigration (“the Director”) on 2 September 2014 after the Unified Screening Mechanism (“USM”). He appealed to the Torture Claims Appeal Board (“TCAB”) on 9 September 2014 and his appeal was dismissed on 20 January 2015.

2.On 20 November 2015, the applicant, by Notice of Application (Form 86), made an application for leave to apply for judicial review of the decision of TCAB.  As the application was brought out of time, the applicant also applied for an extension of time.

3.Leave was granted by the court on 10 August 2016 ex parte.

4.By a consent summons dated 7 September 2016, the Director was joined as an Interested Party.  Leave was also granted to the Director to file an application by way of inter partes summons to set aside the leave to apply for judicial review granted, on the ground of delay on the part of the Applicant in making the application for the leave.

BACKGROUND

5.The Applicant claimed in his non-refoulement claim that he was a supporter of the Indian National Congress (‘INC”), a political party in India.  He started to work for INC in 2012 and soon became an outstanding worker who helped enormously in the propaganda of the party.

6.In early 2013 the elected head of his village by the name of Rajinder-Kumar Papu (“Papu”) demanded the Applicant to leave the INC to work for him and his political party, the Shiromani Akali Dal Party (“SAD”).  Papu threatened to harm him and his family and even to kill him if he refused.  Papu was rich and powerful and was friendly with a member of the Legislative Assembly.

7.The Applicant did not accede to the demand.  On 2 February 2013 the applicant and his father were attacked by Papu and his henchman and Papu even pointed a pistol at the head of the Applicant. The Applicant and his father suffered serious injuries and his father died the following day as a result.  He made a report to the police but his complaint was not registered because the police was afraid of Papu.  No action was taken by the police.

8.In July 2013 the Applicant was abducted by the men of Papu at gun point and was severely beaten.  He suffered serious injuries and was hospitalised for 4 days.  He did not report the incident to the police because he knew that it was useless to do so.  The Applicant then went into hiding and fled to Hong Kong when he felt that he was in imminent danger.

DELAY

9.According to O53 r4(1) of the Rules of High Court an application for leave to apply for judicial review is to be made promptly and in any event within 3 months from the date the grounds for the application first arose unless the court considers that there is good reason for extending the period.  Section 21K(6) of the High Court Ordinance Cap 4 empowers the court to refuse to grant leave for making an application for judicial review or any relief sought if it considers that there has been an undue delay in making the application.

10.The Application filed the Form 86 on 20 November 2015 which was 10 months after the dismissal of his claim by TCAB and 7 months beyond the time limit imposed by the statutes.  The counsel representing the Applicant, Mr Newman Lam, points out that there are good reasons for an extension of time.  The Applicant stated in his affirmations that he had made an application to the Director of Legal Aid (“DLA”) for legal aid to challenge the decision of the TCAB and legal aid was offered in July 2015.  The legal aid certificate was issued on 14 August 2015.

11.At the request of the solicitors representing the Applicant the Director released the Applicant on recognizance on 14 July 2015.  The solicitors had a conference with the Applicant on 17 July 2015, asking the Applicant to provide more documents and information which the Applicant did on 22 September 2015.  The Form 86 was then prepared and filed.

12.A further conference took place between the Applicant and his solicitors on about 21 October 2015 to finalise the instructions of the Applicant.

13.Mr Jesse Yu, counsel for the Director, submits that no good reasons have been given by the Applicant for the delay.

REASONS FOR DELAY UNTENABLE

14.The leading authority on the question of delay in application for leave to apply for judicial review is AW v Director of Immigration, CACV 63/2015.  It was said by the Court of Appeal in this case (at para 26):

“Whenever there is a failure to act promptly or within three months, there is ‘undue delay’. Even though the court may be satisfied in the light of all the circumstances there is good reason for that failure, nevertheless the delay, viewed objectively, remains ‘undue delay’. The court therefore retains a discretion to refuse to grant leave for the making of the application or the relief sought on the substantive application on the grounds of undue delay, 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.”

15.In X v Torture Claims Appeal Board and Director of Immigration HCAL 143/2013, Zervos J said:

“12. In consequence, a claimant seeking judicial review must file a claim form promptly, in any event not later than three months after the grounds to make the claim first arose. A claim form filed after the time limit must be accompanied by an application to extend the time limit for the filing of it. The court may refuse permission to grant leave unless it considers that there is ‘good reason’ for extending the period, and even if it considers that there is, it may still refuse to grant leave if it believes that the granting of the relief sought would be likely to cause hardship or prejudice or would be detrimental to good administration. See Re Ho Mei Ling [2011] 6 HKC 1, at paras 79 to 111 per Lam J (as he then was); Fung Elivira Binag v The Secretary for Home Affairs, HCAL 139/2013, unreported, 10 March 2014, at paras 11 to 13 per Au J. 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. The difficulty that confronts the courts in cases like this is that the delay involved can be substantial which would normally be a bar to dealing with the application, but the reason given for the delay is because of the time taken to process the application for legal assistance which is considered necessary in order for the applicant to complete and file a claim form.  In deciding whether there is good reason for the delay, it may be necessary for the Legal Aid Department to file an affidavit from the relevant case officer setting out a chronology and an explanation of the time taken in processing the application and the reason for any delay or period of inaction that has taken place.  This will obviously be considered together with all other information or material submitted by the applicant.  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.”

16.In the case of AW, the Court of Appeal stated that in claims for humanitarian protection the principles and approach stated in Re Thomas Lai [2014] 6 HKC 1 relating to application for extension of time for judicial review are applicable.  The principles are summarised as follows (at para 27):

“(1) While in the public law field, it is essential that the courts should scrutinise with care any delay in making an application, the provisions of Order 53 rule 4(1) and section 21K(6) are not intended to be applied in a technical manner. As long as no prejudice is caused, the courts will not rely on these provisions to deprive a litigant who has behaved sensibly and reasonably of relief to which he is otherwise entitled (R v Commissioner for Local Administration, ex p Croydon London Borough Council [1989] 1 All E R 1033 at 1046, per Woolf LJ).

(2) However, it must also be borne in mind that unless a disciplined approach to applications for judicial review out of time is taken, there is 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.

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

(i) Length of the delay: Obviously the longer the delay, the more cogent the reason has to be for extending time.

(ii) Explanation for the delay: While Order 53 rule 4(1) 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.

(iii) Merits of the substantive application: Although merits of the challenge of the administrative decision are 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, leave may be refused ‘however strong the complaint might otherwise be’ (Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676 at 693B to C, per Litton NPJ). An applicant who sleeps upon his rights may be barred from pursuing them in judicial review even though he may have a meritorious case (Law Chun Loy v Secretary for Justice, HCAL 13/2005, 26 October 2006, at §13, per Hartmann J).

(iv) 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.

(v) Questions of general public importance: Whether the application raises questions of general public importance, and whether those questions are likely to have to be resolved by the courts in any event.”

17.The delay in the present case is a substantial one.  As pointed out above it is 10 months after the dismissal of the claim of the Applicant by TCAB and 7 months beyond the time limit for making the application.  One of the reasons for the delay, Mr Lam submits, is the time taken for the Applicant to obtain legal aid.

18.As rightly pointed out by the Director there are ample authorities, such as Re Thomas Lai [2014] 6 HKC 1 and Nisa Azizan and Hameed Abdul v Director of Immigration & Another HCAL 203/2015, saying that there is no proposition that difficulty or time taken in obtaining legal aid is a good reason to justify an extension time, albeit it is one of the factors to be considered.

19.In the case of X v Torture Claims Appeal Board and Director of Immigration referred to above it was said that in deciding whether there was good reason for the delay, it might be necessary for the Legal Aid Department to file an affidavit from the relevant case officer setting out a chronology and an explanation of the time taken in processing the application and the reason for any delay or period of inaction that had taken place.  In the case of BI v Director of Immigration [2016] 2 HKLRD 520 the Court of Appeal endorsed the case of BH v Director of Immigration HCAL 105/2014 which expressed a similar view.

20.In the present case the Applicant only submitted his application for legal aid in May 2015 which was already about 1 month beyond the time limit for application for leave to apply for judicial review.  The claim of the Applicant in his 3^rd affirmation that the duty lawyer had not informed him about his right to apply for legal aid and that he was not aware of such right is hard to believe.  If he had pursued his case with due diligence he would not have taken such a long time to discover his right, even if the duty lawyer had really failed to inform him of such right.  In Re Thomas Lai it was said that it was incumbent upon the applicant to demonstrate that he had exercised due diligence in the making and processing of his legal aid application.

21.The Applicant has only made a bare assertion about the time taken in the processing of his legal aid application, with no chronology and other details about the application, let aside verification in any form by any legal aid officer.

22.Subsequent to the granting of the legal aid, the solicitors asked the Applicants to provide documents on 17 July 2015 which the Applicant only did so on 22 September 2015.  There are no details as what the documents were and why they were needed.

23.In the 3^rd affirmation of the Applicant it was said that from the granting of the legal aid certificate on 14 August 2015 to the filing of the application for leave to apply for judicial review on 20 November 2015, he had difficulty obtaining documents from India. The documents were said to include affidavits of witnesses and police statements. 

24.According to Form 86 of the Applicant, in his first report to the police in India, the police did not register his complaint or make any enquiries regarding the verbal threats made by Papu and his men. In his second report to the police in India about the attack by Papu and his men which injured him and killed his father, the police only recorded his complaint in a First Information Report after he had paid them 500 Indian rupees.  As no enquires had been made by the police no statements would have been taken from any witnesses.  It is not known what police statements, if any, the Applicant was seeking to obtain.

25.Furthermore, no documents from India have been produced by the Applicant either in his affirmations or during the USM or TCAB hearing. 

26.There is also a delay in the taking of instructions from the Applicant by his legal representatives to prepare for the application for leave to apply for judicial review.  The first conference took place on 17 July 2015 while the next one took place on 21 October 2015.  According to the submission of Mr Lam the latter conference was held with a view to finalising the instructions of the Applicant.

27.The solicitors and counsel of the Applicant should know as soon as they were assigned by the Legal Aid Department to represent the Applicant that the time to apply for leave to apply for judicial review of the decision of TCAB had already expired and they should act promptly.  There is, however, no explanation why it took so long to finalise the instructions of the leave application and to file the Form 86.

28.All the above shows that the Applicant adopted a lax attitude in pursuing his application for leave to apply for judicial view. The attribution of the delay to the time taken to process his application for legal aid and the difficulty in obtaining documents from India is unfounded. The delay in making the legal aid application is also due to the Applicant’s own fault.

29.The delay in obtaining instructions from the Applicant and the filing of the Form 86, as seen from the submission of Mr Lam, seems to be largely due to the time taken by the Applicant in obtaining documents from India.  As analysed above such an excuse is untenable.

DETRIMENT TO GOOD ADMINISTRATION

30.As pointed out above, it was held in the case of AW that the court retained a discretion to refuse to grant leave for the making of the application of judicial review on the ground of undue delay, if it considered 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.

31.In the judgment of the Court of First Instance in AW it was said that the volume of cases under cruelty and torture claim (“CAT Claim”) was already very large and the time and resources spent on those cases was immense.  It also stressed that it was to the interest of all parties that those cases should be disposed of promptly and efficiently and unnecessary or unmeritorious applications should not be allowed to dwell on causing additional pressure to the administration of the Immigration Department.

PREJUDICE

32.It is pointed out by the Director that the Applicant has not exhausted his alternative remedies.  On 14 September 2016 the Immigration Department wrote to the Applicant inviting him to submit, within 14 days, any additional facts he considered relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection to the department for consideration and if new facts and events were submitted the department, where necessary, would arrange a further screening interview with the Applicant and would provide the Applicant with a further written decision of the Applicant’s non-refoulement claim, taking into account of the new facts and events.

33.The Applicant did not provide any new facts or events by the deadline.  The department sent a further letter to the Applicant on 30 December 2016 informing him that he had been taken to have no additional facts or materials to provide and the department had taken the liberty to further consider his non-refoulement claim in the absence of further facts and materials, coming to the conclusion that he would not be subject to any risk of his absolute and non-derogable rights under the Hong Kong Bill of Rights being violated upon his return to India.

34.It was also stated in the letter that the Applicant might within 14 days from the date of the letter lodge a separate and further petition to the Non-refoulement Claims Petition Office.  The Applicant has not pursued the remedy in this regard.

35.Mr Lam submits that the Applicant had not received the letters.  Even if the Applicant had received the letters, it must be borne in mind that at that time the court had granted leave for the Applicant to apply for judicial review of the decision of TCAB and there was a strong likelihood that he would, as a result, consider that there was no need to pursue that remedy.  After all, the solicitors and counsel assigned to him are for the purpose of the application for leave to apply for judicial review only and the Applicant would not have the benefits of their advice on the matters set out in the 2 letters of the Immigration Department.

MERITS OF SUBSTANTIVE APPLICATION

36.The Applicant raises a total of 6 grounds to challenge the decision of TCAB and Mr Yu has given its reply even though he is strictly speaking not representing the TCAB.  The merits of the grounds raised are an important, though by no means the conclusive, factor to be considered. In view of the conclusion of the court in the present hearing which will become clear later, it is considered not appropriate to present a full analysis and discussion of the grounds and arguments at this stage.  It suffices to say that the court finds the grounds to be reasonable arguable.

37.As stated in Re Thomas the determination of whether there is good reason to extend the time for making the application for leave to apply for judicial review is a multi-faceted exercise.  In AW the Court of Appeal elaborated on the matter:

“The principles governing the exercise of discretion to extend time for judicial review are well established, and they are meant to be applied flexibly, always with regard to the particular circumstances of each case. As stated in Re Thomas, this is a multi-faceted exercise. No comprehensive definition of ‘good reason’ for the purpose of extending time can be given, and the weight to be given to any factor usually to be considered would vary depending on the particular circumstances.”

38.The court basically has to carry out a balancing exercise of the factors set out in AW.  While there is a substantial delay in the filing of the application by the Applicant, the detrimental effect brought about outweighed by the other factors such as prejudice to the Applicant and merits of the substantive application.  The court is satisfied that there is good reason to extend the time.

CONCLUSION

39.The application of the Director to set aside the ex parte leave given to the Applicant to apply for judicial review is dismissed.

COSTS

40.The court makes an order nisi that the Director pays the Applicant’s costs of this hearing.

Mr Newman Lam, Counsel instructed by Messrs M.C.A. Lai Solicitors LLP, for the Applicant

Mr Jesse Yu, Government Counsel of the Department of Justice, for the Interested Party