SHISHPAL v. THE DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 38/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 38 OF 2016

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J U D G M E N T

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1.  This is an application by the applicant for judicial review of the determination by the Director of Immigration (“the Director”) dated 23 January 2015 rejecting the applicant’s claim for non‑refoulement protection from return to his country of origin ie India and the rejection of his appeal/petition to the Torture Claims Appeal Board (“TCAB”) dated 11 June 2015. This court granted the applicant leave to apply for judicial review on an ex parte application on 18 July 2016. The 1^st respondent has also applied by summons for an order to set aside leave on the ground of delay and/or material non‑disclosure.

Background

2.  The defendant is a 29‑year‑old Indian national and has been a long time passive supporter of the Congress Party (“CP”).  When he became an active supporter of the CP in 2014, he asserted that he then came to the attention of the supporters of the Bharatiya Janata Party (“BJP”) and had been attacked on several occasions, the applicant asserted that he did not get reasonable protection from the authorities because he pointed to police inaction in the past in failing to report an active point on his complaint, therefore this inaction he submitted amounts to “acquiescence” justifying his departure from India and his claim for protection.

3.  The applicant arrived in Hong Kong on 8 November 2014 and was refused to land.  He made a claim for protection and was in administrative detention and with the assistance of the duty lawyer service, he lodged his non‑refoulement claim form on 17 December 2014. The applicant’s claim for protection was rejected by the removal assessment section on 23 January 2015, the applicant lodged his appeal/petition on 29 January 2015.  On 27 April 2015, the applicant’s appeal/petition was heard and on 11 June 2015, the Adjudicator handed down his decision rejecting the appeal.

4.  As Ms Chow noted in her skeleton submissions, it is clear that the “core attack” of the applicant is against the factual findings of the Director and TCAB.  It is clear from a reading of the applicant’s skeleton submissions that the focus of the applicant is on the assessment of primary facts and the conclusion that the account of the applicant was not credible.

First respondent

5.  The Director of Immigration (1^st respondent) submitted that the application for judicial review was only filed on 4 Feb 2016 and therefore there was undue delay by the applicant in making the application for judicial review and no good reason had been shown, so the ex parte leave granted by this court should be set aside and further or alternatively, the ex parte leave ought to be set aside as the applicant had failed to comply with the duty of full and frank disclosure as the applicant had failed to fully disclose that he had been served with the relevant claim document in February 2015 and March 2015, therefore Ms Chow submitted that the applicant should not be granted the ex parte leave on 18 July 2016.

Delay

6.  Under Order 53 rule 4(1) of the Rules of the High Court:

“(1) An application for leave to apply for judicial review shall 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 for extending the period within which the application shall be made.”

7.  Under s 21K(6) of the High Court Ordinance, Cap 4:

“(6) 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.”

8.  It is worth noting that the Court of Appeal in AW v Director of Immigration [2016] 2 HKC 393 at p 403 para 27 said:

“27. In Re Thomas Lai [2014] 6 HKC 1, G Lam J considered the relevant authorities and stated the principles to be applied in an application to extend time for judicial review in para 43 to 45. I take the following summary of these principles from the submission of Ms Sara Tong, who appeared for the Director:

(1) While in the public law field, this is essential that the courts should scrutinise with care any delay in making an application, the provisions of Order 53 rule 4(1) and s 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 made 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 exhausted, 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 even though he may have a meritorious case (Law Chun Loy v Secretary for Justice [2006] HKCU 1795, HCAL 13/2005, 26 October 2006, at para 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; and

(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.”

9.  The above principles have been applied consistently by the courts since the Court of Appeal’s decision.

10.  As submitted by Ms Chow, in the present case, there has been a substantial delay of over 9 months in respect of the Director’s decision and 3 months in respect of the TCAB’s decision. It is correct to say that although the applicant alleged the delay was caused by the Legal Aid Department in granting legal aid, however, if one looks at the time taken by the applicant from the granting of legal aid on 14 September 2015, he did not file his Form 86 until 4 February 2016.  It is also pertinent to point out that the relevant documents necessary for the applicant to file his Form 86 were actually the decisions of the Director and TCAB (as per the Court of Appeal in AW at para 38‑39) and as noted by Ms Chow, the applicant did not give any further explanation apart from asserting that he needed to obtain these documents from the Director, no explanation was forthcoming as to why the applicant did not have those documents as they have been sent to him and it was only an assertion in the applicant’s skeleton at para 46 that the documents were lost or mislaid by him and this assertion was only supported by the third affirmation of the applicant dated 17 January 2017.  I also agree with Ms Chow’s submission that the applicant even in his “11^th hour” affirmation had not affirmed as to when these documents had been lost or mislaid.  All the documents were eventually obtained from the Director on 6 January 2016, however, the solicitors or legal representatives of the applicant only first contacted the applicant on 20 January 2016 and Form 86 was not filed until 4 February 2016 and as Ms Chow pointed out, the applicant did not dispute the fact that he had acknowledged receipt of the decisions of the Director and TCAB on 17 March 2015 and without any explanations for the lateness in the filing of Form 86, this court should refuse leave.

The substantive application

11.  Even though the merits of a substantive application is one of the factors to be considered, the Court of Appeal had already made clear in AW at para 27(3)(iii) that leave may be refused however strong the complaint might otherwise be and therefore an applicant who sleeps upon his rights may be barred from pursuing them in judicial review even though he may have a meritorious case and Ms Chow argued that this court did not have to take a view on the merits of the substantive challenge is taken that the application for judicial review serves no useful purpose.  In this case by a letter dated 12 January 2017 from the Director to the applicant, it invited the applicant to submit any additional fact/material which he considered relevant to his non‑refoulement claim on all applicable grounds for non‑refoulement protection including BOR2.  The Director will, then, provide a further written decision of his non‑refoulement claim taking into account any new facts submitted and all facts previously submitted under the USM.  If he succeeds, then the applicant has suffered no prejudice even if this court refuses to extend time.  If he fails, he can still apply for judicial review against that further decision.

12.  I agree with Ms Chow that an unjustifiable delay in bringing judicial review proceeding is prejudicial to good administration in the exercise of effective immigration control.  As was said by the Hon Au J in Pagtama Victorina Alegre & Anor v Director of Immigration (unreported) HCAL 13, 45 & 56/2014 at para 238(3).

13.  As accepted by the applicant, this application involved no questions of general public importance.  As to the duty of full and frank disclosure, Lam J (“as he then was”) in Re Leung Kok Hung (unreported) HCAL 83/2012 at para 35 said:

“. . . an applicant there is a duty of full and frank disclosure in the ex parte application for leave and any breach of such duty may result in leave being set aside. I should add that the duty of full and frank disclosure extends beyond disclosure of material facts, it also extends to disclosure of potential legal answers to the claim of an ex parte applicant. Unfortunately, this duty is not always observed.”

14.  And as later held in the case of TH v Director of Immigration (unreported), HCAL 114/2014 at para 57 that the failure to comply with the duty of full and frank disclosure in an ex parte application for an extension of time to apply for leave to apply for judicial review, is regarded as a serious matter and such failure whatever the reason is serious and the court must be astute to prevent an application from gaining any procedural or substantive advantage from the failure to comply with this basic duty.  The failure in the present case of the applicant to disclose to the court that he did in fact receive the documents in good time but that he had misplaced them in his Form 86 and supporting affirmation is a serious one.  Has this court been enlightened about this matter?  Leave would not have been granted.

Merits

15.  According to Mr Barnes, the “core attack” of the applicant against the Director and the TCAB’s findings is the methodology adopted by the Director and the TCAB.  But having read the submissions of Mr Barnes, he was in fact attacking the factual findings made by the Director and TCAB.  As Ms Chow pointed out, this court is not dealing with this case as a further appeal on the merits, but rather in the exercise of its supervisory jurisdiction.  This court has to examine whether the Director and/or TCAB made any error of law, adopted procedures without compliance to the high standard of fairness or whether the substantive decision did not satisfy the enhanced Wednesbury test.  Ms Chow in her written submission prays in aid many cases on this topic and it is so well decided now that it is not necessary to cite them all here, it only behoves me to say that they range from TK v Jenkins (unreported) HCAL 126/2010 to Harvinder Singh (unreported) HCAL 33/2016.

16.  The Court of Appeal in TK v Jenkins supra and (applied in numerous subsequent cases) laid down the following general principles:

(1) In the determination of whether there are “substantial grounds for believing” that the torture claimant would be in danger of being subjected to torture if he were to be returned, the standard of proof required that the prove of the risk of torture is “more than a mere possibility”, without the need to show that it is “highly likely” that the claimant would be subjected to torture;

(2) In relation to the proof of primary facts relevant to the torture claimant’s claim, for example his personal history of what had happened to him to show that he was at risk, the simple standard of his balance of probabilities is applicable;

(3) A torture claimant said there is a burden of proof to make out that his case for within the requirement under the CAT.  High standards of fairness do not entitle this torture claimant, having stated a claim, “to simply sit back in require that the Director to disprove it”, and the exercise of determining whether a claim made under article 3(1) of the CAT is valid must be one of “joint endeavour”;

(4) Where claimant is represented in the suit by duty lawyers, he is expected to conduct his own investigation and obtain information and materials that he required to his case.  The bottom line of the high standards of fairness required and screen process boils down to “fairness and commonsense”;

(5) Moreover, whether high standards of fairness may require the Director or the Adjudicator to probe further into an answer or an omission is dependent on the fact that there are substances of each case.  For instance, where it is readily apparent that something had gone amiss such as the “proof documents” in Prabakar that the applicant there had mentioned but was unable to produce and did not produce, or that a point has obviously been overlooked or missed out.  There may however be “no duty to keep probing or inquiring whether the objective circumstances made it reasonably clear that the applicant and those representing him are aware of what he has to show and has already produced or mentioned all that he wants to produce or mention”; and

(6) Whether the applicant is legally represented if the applicant and his legal representatives had not seemed fit to obtain and supply his information to the Director, high standards of fairness would not require the Director to do so for the applicant “at least in the absence of any request for assistance and an explanation of the difficulties (if any) encountered or anticipated.”

17.  Mr Barnes claimed that TCAB wrongly found that it was illogical for the applicant to report to the police about the assault on him.  As Ms Chow pointed out, it is not that the TCAB found that it was illogical for the applicant to make a report to the police, rather it was the TCAB’s decision that it is a matter directly referable to the applicant’s credibility. What TCAB was saying was that according to the applicant’s own evidence, the applicant was not able to identify his assailants and therefore even if a report was made, it would not be helpful at all as to start an investigation of unknown assailants.

18.  As for the country information that there were cases in India where the police refused to register citizen’s complaints, does not exist in this case because the assessment conducted by TCAB was as to the credibility of the applicant, not whether the police failed to register his complaint, because at the end of the day had the police registered his complaint, it would still be listed as assault by unknown assailants.  So the TCAB was actually dealing with this matter solely within the ambit of the applicant’s credibility.

19.  I would also agree with Ms Chow’s submissions that the Adjudicator’s finding that the country information on the failure of the Indian Police “of no assistance” and only “generic in nature” confused the issues of state protection and acquiescence with the issue of whether the applicant had demonstrated a genuine and substantive risk that he would personally be at risk of harm if refouled.  The question of protection by the police was also addressed by TCAB and at para 42, TCAB found that it could not be said that the police acquiesced simply because it did not further investigate when the applicant could not identify the attackers.  It cannot be said that TCAB had failed to consider properly or analyse the issue of extended acquiescence nor can it be argued that the finding on this issue is Wednesbury unreasonable.

20.  So for all the above reasons, I set aside the ex parte leave and this application for judicial review is dismissed.

Costs Order

21.  I make the following nisi costs orders, to be made absolute should know application to vary be made within 14 days:

(1) cost of the application be to the Director, to be taxed if not agreed; and

(2) the applicant’s own costs to be taxed in accordance with the Legal Aid Regulation.