Aw v. Secretary for Security and Others

HCAL91/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO.91 OF 2013

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J U D G M E N T

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Introduction

1.The applicant was born on 6 November 1973 in Pakistan.  He was a follower of the Ahmadiyya Faith. He was allegedly under threat of physical and mental torture by others in his home town because of his faith since 2006.  He left Pakistan for China on 16 November 2011 and sneaked to Hong Kong on 12 December 2011.  He lodged a torture claim in February 2012.  His torture claim was rejected by the Director of Immigration on 22 June 2012.  His petition to the Torture Claim Appeal Board was dismissed by the Adjudicator on 8 August 2012.  

2.Legal aid was granted to the applicant to challenge the decisions of the Adjudicator by way of judicial review on 4 October 2012.  It was further extended to cover other respondents[1] on 26 March and 6 May 2013 respectively. 

3.The notice of application for leave to apply for judicial review was filed on 22 May 2013.  The applicant accepted that it was more than 9 months since the Adjudicator’s decision.  The applicant however argued that there were good reasons for extending the 3-month-time limit under O53 r4. 

The delay

4.Ms Ann Lui, counsel for the applicant, explained that the delay was due to the following reasons,

a From 9 August to 4 October 2012, the applicant took time to apply for legal aid.

b From 29 October to 12 December 2012, the applicant waited for papers in the custody of the Director of Immigration and the Secretary for Security.  These include any removal order/deportation order and other statements by the applicant prior to the CAT claim assessment.[2]

c The applicant’s legal adviser took time to consider various authorities handed down during that period.[3] 

d From 25 March to 22 May 2013, the applicant waited for legal aid to be extended to other respondents.  There was the application for the anonymity order.  The applicant needed time to make the contribution of $2,000 required by the Legal Aid Department. 

5.Counsel for the Director of Immigration, Mr Jesse Yu, objected the extension of time.  He argued as follows. 

a The applicant had already filed a non-refoulement claim on CIDTP grounds[4]. On the commencement of the Unified Screening Mechanism (USM), the Director of Immigration would re-assess the applicant on those grounds based on the information and documents submitted during the CAT claim[5].  As the scope of torture under CIDTP claim is wider than that under CAT claim[6], the applicant may be accepted under CIDTP claim despite his CAT claim was rejected.  It served no useful purpose to judicial review the CAT claim. 

b If his CIDTP claim is rejected, it would be most unlikely that he could be accepted under CAT claim. 

c In case his CIDTP claim is rejected by the Director of Immigration, he may again petition the Adjudicator and pursue other means to challenge that decision. 

d The reasons for delay given by the applicant were not good reasons.  

e In any event, it would be detrimental to good administration to grant leave

Principles on extension of time

6.The essential requirement of O53 r4(1) is that application for leave to apply for judicial review must be made promptly and in any event within 3 months from the date when the ground for the application first arose.  There must be good reasons before an extension of time would be granted. 

7.Where there is undue delay or even good reasons to extend time, a court may refuse leave or the relief where it would be likely to cause hardship or prejudice or detrimental to good administration within s21K(6) of the High Court Ordinance.[7] 

8.The principle is clear.  An applicant has to act promptly.  As Hartmann J (as he then was) said in Law Chun Loy v Secretary for Justice:

“9. What must also be emphasised is that O.53, r.4(1) does not permit an applicant simply to sit back and wait until the three month period stated in the order is drawing to a close before instituting action. The primary requirement of O.53, r.4(1) is promptness. The fact that an application has been made within three months does not necessarily mean that it has been made promptly. There may be occasions when an applicant who has filed his application for leave within the three months time period will still be judged to be guilty of undue delay.”[8]

9.In my view, while a court is vigilant to scrutinize administrative acts, promptness of action by those affected is always an important factor in judicial review.  I agree with the comment of Hartmann J (as he then was) in Law Chun Loy,

“In summary, any person who seeks by way of judicial review to challenge a public law decision is from the outset under a clear warning ‘sleep on your rights and, even if your cause is meritorious, you may find the gates locked against you.’” [9]

10.Also in the same judgment, Hartmann J cited the comment of Stock JA in Lo Siu Lan and Ma Ki Chiu v Hong Kong Housing Authority which I entirely agree,

“The right to review the legality of administrative decisions is of course essential to a free society governed by the rule of law. But it is essential too that that freedom be exercised in a framework that reflects a ‘proper awareness of the needs of public administration.”[10]

11.In considering the issue of promptness to apply and the extension of time, I do bear in mind the observation of the Court of Appeal in England,

“This consideration bears indirectly on the second matter, the interests of good administration. Administration beyond law is bad administration. The courts exist to protect the former as jealously as to stop the latter; but they cannot know which they are dealing with unless they can hear out and decide viable challenges to the legality of administrative acts. This cannot be regarded as a universal rule, since in England and Wales not every viable challenge secures permission, but it heavily qualifies the availability of a “good administration” answer to a plea of promptness or an application to enlarge time, and it is doubtless the reason why public authorities rarely consider it appropriate to use it.”[11]

12.I now turn to the explanation on the delay.

Legal aid

13.The time spent in applying legal aid is normally not a valid ground unless there is evidence to show that the delay is entirely due to the application process and the applicant has acted promptly in that process.  

14.In this case, the Adjudicator’s decision was made on 9 August 2012.  Legal aid was granted on 4 October 2012.  There was plenty of time for those advising the applicant to file a notice for judicial review within the 3-month-limit.  

Relevant papers in his personal file

15.Ms Lui explained that it was necessary to clarify whether the applicant was subject to any removal order and whether he had made any statements other than those in relation to the CAT claim.

16.These documents were not essential in preparing the notice of judicial review.  At this stage, the decisions from the Director of Immigration and the Adjudicator were the two most relevant documents.  Further, the applicant had the assistance of duty lawyer services when interviewed by the staff of Immigration Department.  He must have the questionnaires with him. 

17.In my view, the applicant should have all relevant papers necessary for drafting the notice of judicial review as early as August/October 2012. His personal file in the Immigration Department was not essential.  

Decisions during the interim

18.It is true that there were important decisions, handed down from October 2012 to March 2013, revising the law in relation to CAT claim[12].  These authorities had not substantially affected the position of the applicant.  He could have filed a notice of judicial review in any event.  In fact, he could later seek amendment of the notice in view of the current development.  

19.A change of the understanding of the law by itself is not a valid ground to extend time of appeal.  In Lau Luen Hung Thomas v Insider Dealing Tribunal[13], the Court of Final Appeal confirmed this principle set down in HKSAR v Hung Chan Wa and Anor[14].  Chief Justice Li (as he then was) commented,

“…In the present case, in refusing to extend time in the exercise of its discretion, the Court of Appeal had applied the principles laid down by the Court of Final Appeal in HKSAR v Hung Chan Wa (2006) 9 HKCFAR 614 at paras. 23 to 27. In that case, it was held that in dealing with applications for extension of time, the principle is that the ground that the previous understanding of the law has subsequently been held to be incorrect would by itself not justify an extension of time. The Court noted however that there could be exceptional circumstances in a particular case which would justify an extension but observed that the circumstances must be so exceptional that the occasions when they would be held to exist would be very rare.”

20.In my view, similar principle should apply to the present case as the issues concerned are in common—finality of decisions and the discretion to grant an extension of time.

21.I see no justification on this ground.

Additional respondents

22.Had the applicant filed the notice of judicial review promptly, it was always possible to add respondents to the notice of judicial review on good grounds.  There was no reason for the time spent in waiting for legal aid in this aspect. 

23.For the same reason, the time needed for the applicant to make the legal aid contribution of $2,000, in relation to the additional respondents, could not be a valid ground justifying any delay. 

The Anonymity order

24.The application for this order was only made on 10 May 2013. This order was not affected by these important decisions[15].  It was an ex parte application which was dealt with on paper. The time needed for preparation was not substantial.  I do not think it could have contributed to the delay in any extent. 

Merits of the judicial review

25.In Hung Chan Wa, the Court of Appeal had this to say,

“It is clear from this passage that whether or not leave to appeal out of time should be given will depend on the particular circumstances of the case…It follows from this, the fact that a person is in prison can be but just one factor to be taken into account.

Nor would the fact that the appeal is likely to succeed a sufficient exceptional circumstance for leave to be granted, although lack of merits or substantial merits in an appeal would be a good reason to refuse leave…” [16]

26.Same principle applied in judicial reviews.  It is not sufficient exceptional circumstances to grant an extension of time despite there might be merits in the application. 

27.The crux of the Adjudicator’s decision was that there was no severe physical or mental suffering reaching the minimum level of severity.  The whole case involved a private affair and not connected to Pakistani officials.  There was no evidence that there was a general stance of acquiescence by any official in Pakistan[17]. 

28.The determination of the Director of Immigration was based on similar findings as set out in section (III)(A) of the Notice of Determination. 

29.The main challenge put forward by the applicant against the decision of the Adjudicator was his failure to hold an oral hearing to determine that (1) there was torture and (2) there was consent and/or acquiescence by a public official.  

30.Although the challenge is dressed up under the heading of failure to hold an oral hearing, the fundamental issue in my view was whether there was torture and acquiescence.  The issue of torture would certainly be canvassed in the CIDTP claim.  Acquiescence would not be relevant. 

31.For the reasons stated in the next section, I do not think it is necessary to comment on the merits of the applicant’s challenge. 

Detriment to good administration

32.Mr Yu, counsel for the Director of Immigration, pointed out that the present application for judicial review could serve no useful purpose as the applicant had filed a fresh claim under the USM.  I agree with his submission for the following reasons:

(a) Under the USM, where an applicant relies on Article 3, Section 8 of the Hong Kong Bill of Rights Ordinance (‘CIDTP claim’), he must establish (i) that the ill-treatment which he would face if expelled attains what has been called “a minimum level of severity” and (ii) that he faces a genuine and substantial risk of being subjected to such mistreatment.  It is clear that a very high threshold must be surmounted to establish each of those requirements.[18]

(b) Under CIDTP claim, there is no need to establish involvement by the state or a public official.  Nor is there any need to consider acquiescence as under CAT claim.  In this sense, the former is wider in scope.

(c) As the applicant had filed a claim under USM, he would be assessed on the CIDTP claim based on the information and documents submitted under his CAT claim.  

(d) Given the wider scope of ‘torture’, the applicant might be accepted under the CIDTP claim despite the fact that he had already been rejected under CAT claim. 

(e) If the applicant is rejected under CIDTP claim, there is very little chance that he could be accepted under CAT claim. 

(f) The present judicial review would serve no useful purpose.

(g) Even if the applicant is rejected under CIDTP claim, he may petition to the Adjudicator again and judicial review the latter’s decision if need be. 

33.What constitutes ‘detriment to good administration’ varies with cases.  In Caswell and Another Appellants v Dairy Produce Quota Tribunal for England and Wales, Lord Goff of Chieveley, made the following comments with which the other members of the House of Lord agreed,

“I do not consider that it would be wise to attempt to formulate any precise definition or description of what constitutes detriment to good administration. This is because applications for judicial review may occur in many different situations, and the need for finality may be greater in one context than in another. But it is of importance to observe that section 31(6) (s.21K(6) in Hong Kong) recognises that there is an interest in good administration independently of hardship, or prejudice to the rights of third parties, and that the harm suffered by the applicant by reason of the decision which has been impugned is a matter which can be taken into account by the court when deciding whether or not to exercise its discretion under section 31(6) to refuse the relief sought by the applicant. In asking the question whether the grant of such relief would be detrimental to good administration, the court is at that stage looking at the interest in good administration independently of matters such as these.”[19]

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.  

35.As analysed above, in case the applicant’s CIDTP claim is rejected, there is very little chance that he would be accepted in his CAT claim.  To allow his CAT claim to remain in the pool of cases would not be conducive to good administration.  

36.In my view, the rights of the applicant are sufficiently assessed and protected under the USM.  The refusal to extend time would not lead to grave consequence to the applicant. 

Conclusion

37.In all the circumstances and for the reasons above, I am not persuaded that there is any good reason to grant an extension of time.  To do otherwise is detrimental to good administration.  The application for leave to apply for judicial review is accordingly dismissed.

38.I make no order as to costs for these proceedings.  The applicant’s own costs be taxed in accordance with legal aid regulations.

Ms Ann Lui, instructed by Daly & Associates, assigned by Director of Legal Aid, for the applicant.

Mr Jesse Yu, GC of the Department of Justice for the Director of Immigration.