Tiwari Amandeep v. Torture Claims Appeal Board

HCAL 226/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 226 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 born in India on 9 December 1989. He came to Hong Kong on 1 April 2014 and was refused permission to land by the Hong Kong immigration authorities. He lodged a non-refoulement claim while pending repatriation to India. His claim was rejected by the Director of Immigration (“Director”) on 3 July 2014. He appealed to the Torture Claims Appeal Board/Non-refoulement Petition Office (“the Board”) on 14 July 2014 and his appeal was dismissed on 12 February 2015.

2.On 20 November 2015, the Applicant, by Notice of Application (Form 86), made an application for leave to apply for a judicial review of the decision of the Board.  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 8 August 2016 ex parte.

4.On 9 September 2016, leave was granted by the Court for the Director to be joined as an Interested Party.  On 20 October 2016, the Director took out an inter partes summons to set aside the leave for judicial review granted, on the ground of delay on the part of the Applicant in making the application for leave for judicial review.

BACKGROUND

5.The Applicant claimed in his non-refoulement claim that he was brought up in a village in Moom in Punjab and received schooling up to Class 11.  He became a supporter of the Congress Party (“CP”), a political party in India, around 2007 to 2008, joining the rallies and campaign of the party.

6.In January 2010 he took part in a protest against the Akali Dal Party (“ADP”), another political party, which ended in a fight between the supporters of the 2 parties.  The Applicant did not take part in the fight, but an ADP Member of Parliament who was attacked and had his turban untied accused the Applicant as one of the 4 assailants who assaulted him.

7.Shortly after this incident 5 or 6 unidentified ADP people slapped the Applicant and threatened to make false accusations to frame him up. He did not report the matter to police and he later received similar threats in 2 telephone calls from unidentified callers who told him to quit the CP.

8.In August 2010, when he was in a festival carnival of Village Chappa, 4 unidentified persons whom he believed to be from ADP, punched his back and slapped him a few times. 

9.He sustained no injury in both incidents.  No report was made to the police because the Applicant understood that it was of no use to do so as the police only worked for the ADP which was the ruling party at that time.

10.Feeling afraid, he moved to live in his friend’s place in Chandigarh in November 2010.  He continued to receive threatening calls from the ADP people.  At the end of 2011 the Applicant did not receive any more such calls and he went home in early 2012.

11.While the Applicant was staying at home the ADP village head asked him to join the ADP and threatened to frame him up with false accusations if he failed to do so.  The Applicant refused and even resumed his political participation.  In March 2013 he was beaten up by 6 to 7 ADP people with bare hands and he was rescued by the people nearby.  He sustained multiple injuries which required medical treatment.

12.In July 2013 there was an election of village committee.  The ADP people told him to support the ADP which he refused.  The ADP candidate won the election and since then the Applicant was abused and spat at by the ADP people whenever he met them.  He went to stay at his maternal uncle’s place for 3 months and went home at the end of 2013.

13.After returning home, he was on one day attacked by some unknown ADP members who dragged him to a pond and dipped his head into the water several times.  He lost his consciousness and when he recovered he found himself at home.  He made a report at the Barnala Police Station.  The officers accused him of lying when they heard about the ADP and took no action. He did not take his complaint to higher ranking police officers nor did he report the matter to another police station. 

14.Feeling afraid, he went to stay with a friend in Ratia for 15 days.  When his friend told him that the ADP people could still find him he decided to leave India.  He arrived in Hong Kong on 1 April 2014 and stated to the Hong Kong Immigration that the purpose of his visit was for sight-seeing.  When he was refused entry he raised his non-refoulement claim.

DELAY

15.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 an extension of time.

16.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.  It provides as follows:

“Where the Court of First Instance considers that there has been undue delay in making an application for judicial review, the court may refuse to grant -

(a) 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.”

17.The Form 86 in the present case was filed on 20 November 2015 which was 10 months after the dismissal of the Applicant’s claim by the Board on 12 February 2015 and 7 months beyond the time limit imposed by the statutes.  There are ample authorities saying that the onus is on the Applicant to show that there is good reason to extend the time for application for leave to apply for judicial review.

18.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.”

19.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.”

20.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 in relation to the applications 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.”

21.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 the Board and 7 months beyond the time limit for making the application.

22.The counsel representing the Applicant, Mr Peter Barnes, points out that there are good reasons for an extension of time and sets out the explanation for the delay in his submission.

APPLICATION FOR LEGAL AID

23.As pointed out by Mr Barnes, a substantial proportion of the period of delay was taken up in applying for and obtaining legal aid.  The Applicant set out in his affirmations that he made an application to the Director of Legal Aid (“DLA”) for legal aid to challenge the decision of the Board on 17 February 2015.  This was done a few days after the decision was made known to him.  His application was, however, refused on 5 May 2015.

24.On 15 May 2015 the Applicant re-applied for legal aid which was offered on 4 June 2015.  The legal aid certificate for the Applicant to challenge the decision of the Board was issued on 26 June 2015.

25.The solicitors had a conference with the Applicant on 24 July 2015 and asked the Applicant to provide documents relating to his torture claim and petitions applications.  The Applicant had, however, misplaced them and did not have them in his possession.

26.On 8 September 2015 the solicitors wrote to the Immigration Department to ask for the documents which were provided to and collected by the solicitors on 10 September 2015.

27.On 22 September 2015 the solicitors tried to contact the Applicant to arrange for a conference but was unable to reach him at the telephone number provided by him.  The solicitors wrote to the Applicant on 30 September 2015, asking him to attend the solicitors’ office immediately.

28.The Applicant, however, did not contact the solicitors until 12 October 2015, saying that he did not have any money for travelling and that he would attend the office of the solicitors as soon as possible.  He did so on 23 October 2015 and a conference was conducted.  A further conference took place on 13 November 2015 after which the Form 86 was filed on 20 November 2015.  

29.As rightly pointed out by the Director there are ample authorities, such as AW and Re Thomas Lai [2014] 6 HKC 1, saying that the time spent by an applicant to apply for and obtain legal aid cannot constitute valid grounds justifying any delay, notwithstanding that such matters may be beyond the Applicant’s control.  To be fair to the Applicant, this is certainly one of the factors to be considered by the Court in deciding whether time extension should be granted.

30.The Applicant submits that the present case is different from that of AW in that when the legal aid certificate was issued it was already beyond the time limit of 3 months.  Despite being so it certain does not mean that the Applicant or his solicitors can then adopt a lax attitude in filing the application for leave to apply for judicial review.  The Court does not see any significance in such difference.  It must be borne in mind that the law requires the application to be filed promptly which, in the view of the Court, has obviously not been done so in the present case.

31.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.

32.The Applicant has only made a bare assertion about the time taken in the processing of his legal aid application and there is no verification in any form by any legal aid officer.  The Applicant explains that his solicitors had made enquiries with the Legal Aid Department to obtain further particulars as to why it took more than 4 months before the legal aid certificate was issued.  There is, however, no details as to when and how the solicitors made the enquiries and it remains the fact that at the time of hearing no information from the Legal Aid Department is provided to the Court. This is a further reflection on the lack of diligence of the Applicant in pursuing his leave application.

DELAY IN TAKING OF INSTRUCTIONS

33.There is also a delay in the taking of instructions from the Applicant to prepare for the application for leave to apply for judicial review.  The solicitors did not have the first conference with the Applicant until almost a month after they had been assigned by the Legal Aid Department to represent the Applicant.

34.When the solicitors discovered during the conference that the Applicant no longer had the possession of the documents relating to his torture claim and torture petitions applications, the solicitors did not write to the Immigration Department to ask for the documents until about 2 weeks later.

35.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 the Board had already expired and they should act promptly.  There is, however, no explanation for the delay.

LOSS OF CONTACT OF THE APPLICANT

36.The second conference did not take place until 23 October 2015.  The reason is that the solicitors had lost contact with the Applicant and was unable to reach him at the telephone number provided by him.  The Applicant took more than 10 days to contact his solicitors after his solicitors wrote to him on 30 September 2015.  The Applicant told the solicitors that he had no money for travelling and that he would attend the office of the solicitors as soon as possible.

37.This is hardly an excuse to explain why he would have lost contact with his solicitors.  Had the Applicant pursued his application with diligence he would have contacted his solicitors even if he had no money for travelling.

38.Even though there was already a substantial delay, the Applicant still did not attend the office of the solicitors for the second conference until more than 10 days later.  There is again no explanation for the delay.

39.All the above matters reveal a totally lax attitude on the part of the Applicant in pursuing his application for leave to apply for judicial review.  The attribution of the delay to the time taken by the Legal Aid Department to process his application for legal aid is unfounded. The delay in obtaining instructions from the Applicant and the filing of the Form 86 is attributable to the fault of both the Applicant’s lawyers and the Applicant himself.

DETRIMENT TO GOOD ADMINISTRATION AND PREJUDICE

40.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 application for 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.

41.In this authority the Court of Appeal quoted the judgment of the Court of First Instance:

“69. As stated by the judge in §33 of his judgment,

‘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.’ ”

42.The Applicant points out that the Director on 6 December 2016 made a further determination on the Applicant’s non-refoulement claim, considering whether the Applicant had any claim under any other absolute and non-derogable right including those under Article 2 of the Hong Kong Bill of Rights.  The Applicant is now appealing against the finding of the Director in the further determination to the Board.

43.The Applicant contends that as the Applicant cannot be removed from Hong Kong until that appeal is finally determined, there is no prejudice or detriment on the ground of immigration control.

44.This argument is misconceived.  It is important that all non-refoulement claims should be disposed of expeditiously and efficiently, otherwise immense pressure would be exerted on the immigration authorities, the courts and other related institutions.  Substantial and undue delay without good reasons invariably amounts to detriment to good administration, even if the Applicant cannot, due to any reasons, be immediately removed from Hong Kong.

45.As the Applicant has filed an appeal against the finding of the further determination of the Director, a refusal to allow an extension of time for the Applicant to file his application for leave to apply for judicial review will cause no prejudice to him.

MERITS OF SUBSTANTIVE APPLICATION

46.The Applicant raises 4 grounds to challenge the decision of Board and contends that such grounds are reasonably arguable.

RISK OF TORTURE

47.In the 1^st ground the Applicant criticises that the Board erred in law in coming to the conclusion that the Applicant had failed to demonstrate that he would be subject to “ill-treatment” instigated or with the acquiescence of a “state agent” solely because the Applicant had suffered no such “ill-treatment” while he was in India.  The Applicant complains that the Board had failed to investigate if he would be subject to such a risk.

48.The contention of the Applicant, as pointed out by the Director, has no merit.  The Board did not come to such conclusion in the way as complained of by the Applicant.  In fact it pointed out clearly that the lack of “ill-treatment” in the past did not mean no torture in future.  The Board only came to the conclusion that there were no substantial grounds showing a foreseeable and real risk of such treatment after analysing and assessing all the relevant evidence.

BEING SAFE TO RETURN TO INDIA

49.In the 2^nd ground the Applicant argues that the Board wrongly came to the conclusion that the Applicant would be safe to return to India.  He contends that such conclusion is irrational and unsustainable.

50.This ground concerns the Country of Origin Information (“COI”) referred to by the Board.  The Applicant complains that the Board, when referring to one of the sources of information, namely the UK Border Agency Report (“the report”) on India dated 30 March 2012, ignored the parts favourable to the Applicant which amply demonstrated that there were widespread, systematic problems with the Indian police force.

51.The Board set out in its decision a summary of the various sources of information which, admittedly, were mainly of the positive side of the government, politics and police force of India.  This, however, does not mean that the Board had ignored matters which are favourable to the Applicant.  As rightly pointed out by the Director, when the claim of the Application was first screened by the Director, the immigration officer concerned in the first-tier decision dated 3 July 2014 made a thorough analysis of the report, including contentions of the widespread corruption of the police in India.  The Board expressly referred to and adopted the analysis and conclusion of the decision.

52.The Applicant argues that the failure of the Board to either cite or grapple with material which is supportive of the claim of the Applicant renders the decision of the Board unsafe.  This argument is unfounded.  The Board clearly had in mind all the materials favourable to the Applicant, despite not setting them out.  It even asked the Applicant to comment on the information in the COI during the hearing.  It only adopted the decision of the immigration officer after considering all the evidence.

53.After all, the issue lies in whether the Applicant is able to show that he is personally at risk on his return to India.  The Board after careful analysis of the evidence came to the conclusion that there was no such risk.

STATE ACQUIESCENCE

54.In the 3^rd ground the Applicant argues that the Board erred in its approach to and assessment of the COI, thus failing to apply the test of state acquiescence and extended state acquiescence in India.

55.This ground is linked to the 2^nd ground.  As pointed out above the Board had considered all the evidence and the information in the COI before coming to its conclusion.  The Court does not see how it can be said that the Board had not properly applied the relevant tests.

RELOCATION

56.In the 4^th ground the Applicant argues that the Board had not made adequate enquiry regarding the issue of relocation and had failed to follow the requirements of TK v Jenkins [2013] 1 HKC 528 that the Director was to specifically raise the issue and assist an applicant in dealing with the matters relating to the issue.

57.This issue was specifically dealt with by the Board in its decision.  It referred to the first-tier decision by the immigration officer who had thoroughly analysed the evidence and assessed the situation before coming to the conclusion that it was safe for the Applicant to return to India and that internal relocation was available to the Applicant.  The Board adopted the views of the immigration officer.  The conclusion of the Board cannot be faulted.

GROUNDS NOT REASONABLY ARGUABLE

58.Having now heard arguments of the Director and the Applicant and for reasons aforesaid the Court is of the view that the grounds for relief of the Applicant are not reasonably arguable.

BALANCING EXERCISE

59.As stated in Re Thomas the determination of whether there is good reason to extend the time for making an 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.”

60.The Court basically has to carry out a balancing exercise of the factors set out in AW.  Having now heard arguments of the Director and the Applicant the Court is of the view that there is a substantial and undue delay in the filing of the application for leave to apply for judicial review by the Applicant.  There are no good reasons for the delay which is detrimental to good administration.

61.The Court also finds that the grounds of judicial review raised by the Application are not reasonable arguable and that no prejudice will be caused to the Applicant if leave to apply for judicial review is refused by the Court.  For all these reasons, the Court is now of the view that leave should not have been granted to the Applicant to apply for judicial review.

CONCLUSION

62.It is the conclusion of the Court that there is no good reason to extend the time for the Applicant to file his application for leave to apply for judicial review.  The leave granted to the Applicant ex parte on 8 August 2016 is accordingly set aside.

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

Mr Peter Barnes, Counsel instructed by Messrs M C A Lai & Co (assigned by the Director of Legal Aid), for the Applicant

Mr Jonathan Chang, Counsel instructed by the Department of Justice, for the Interested Party