MRMS v. THE DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 53/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 53 OF 2016

___________________

___________________

___________________

J U D G M E N T

___________________

1.  This is an application for leave to apply for judicial review against the decision of the Director of Immigration (hereinafter called “the Director”) and the Torture Claim Appeal Board (hereinafter called “the Board”), for dismissing the claim of the applicant made under Article 3 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) (hereinafter called “the torture claim”).

A.   BACKGROUND

2.  The applicant is a Sri Lankan national and a Tamil speaking Muslim.

3.  He came to Hong Kong on 21 April 2005 and was refused to land.  He was repatriated to Sri Lanka.  On 31 January 2007, he was arrested by the Hong Kong Police, he admitted that he had sneaked into Hong Kong from China in July 2006 and filed an asylum claim with the UNHCR shortly after his arrival.

4.  It was not until after he was charged with illegal remaining and appeared in the magistracy that he lodged a torture claim.  He alleged that due to racial and religious differences, he was abducted by gangsters but managed to make good his escape in 2004.  He said that two very influential Singhalese persons led a mob to break into his mother’s house and accused him of damaging a Buddhist shrine in 2005.  He said he was assaulted by the mob and the police and whilst trying to escape he accidentally injured one of the two leaders.  He was wanted by the police.  He alleged that he would be subject to torture upon his return to Sri Lanka.

5.  The torture claim was rejected by the Director on 27 March 2012, and his petition was dismissed by the Board on 22 June 2012 without any oral hearing.

6.  Legal aid for judicial review was granted to the applicant on 18 February 2014.

7.  The Notice of Application (Form 86) for leave to apply for judicial review was only filed on 4 March 2016.  By then 44.5 months have elapsed since the dismissal of his claim by the Board.  The applicant now applies for an extension of time on grounds that there are good reasons for extending the 3 months time limit under O 53 r 4.

B.   SUBMISSION

B1.   The applicant

8.  At the hearing, the applicant was represented by Mr Sutherland of Counsel.  It was submitted that the decision of the Director was at least reasonably arguable that the decision was Wednesbury unreasonable and unlawful:

(1)   took into account irrelevant considerations and failed in taking into account COI reports;

(2)   erred in making adverse credibility findings against the applicant;

(3)   assessing the risk faced by the applicant if he were to return to India; and

(4)   no proper basis for consideration of internal relocation.

9.  Against the Board, it was submitted that the Adjudicator’s decision was unlawful and there was procedural unfairness:

(1)   by dealing with the appeal on a paper review without an oral hearing and not giving the applicant notice of his intention not to afford the applicant an oral hearing for his Petition;

(2)   by taking into account irrelevant matters whilst placing insufficient weight on the COIs and the history of violation of human rights;

(3)   in concluding that there was internal relocation options open to the applicant; and

(4)   failing to take into account extended state acquiescence.

B2.   Delay

10.  Time and again, the courts have insisted in the promptitude in the applications for leave to apply for judicial reviews.  Such leave applications shall be made not later than 3 months from the date of the challenged decision, O 53, r 4(1) of the Rules of the High Court (Cap 4A).  The court may on the basis of inordinate and inexcusable delay grant leave unless the applicant can demonstrate good reason.

11.  Hartman J (“as he then was”) said in Law Chun Loy v Secretary for Justice, HCAL 13/2005:

“13. . . . ‘sleep on your rights and, even if your cause is meritious, you may find the gates locked against you’.”

12.  In X v Torture Claims Appeal Board and Director of Immigration, Zervos J said:

“12. . . . 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. ...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.”

13.  In AW v Director of Immigration and Anr, CACV 63/2015, the Court of Appeal stated that claims for humanitarian protection are no special category and the principles and approach stated in Re Thomas Lai [2014] 6 HKC 1 relating to the applications for extension of time for judicial review are applicable.  In considering the “multi-faceted question” whether there is a good reason for extending time, the following factors are taken into account.

B2.1  Length of the delay and the explanation

14.  The Board decision was handed down on 22 June 2012, the applicant only applied for legal aid in November 2013 and legal aid was granted in February 2014.  In his 3^rd affirmation which was filed 3 days before the hearing, the applicant explained that he had no idea that he could take out judicial review proceedings and knew nothing about legal aid.  It was only “some time in 2013” that he learnt about these and he applied for legal aid on 11 November 2013.

15.  That explanation contradicts counsel submission in the Form 86 and Skeleton Argument that “after assignment, the applicant’s solicitors and counsel advised the applicant that it was in his best interests to wait for the effects and ramifications of the judgments of the Court of Final Appeal in both Ubamaka and C . . . ”

16.  A chronology of events is hereby set out as follows:

(1)   Board decision hand down on 22 June 2012;

(2)   The Court of Final Appeal handed down its decision in Ubamaka on 21 December 2012;

(3)   The Court of Final Appeal handed down its decision in C, KMF and BF on 25 March 2013;

(4)   Applicant submitted application for legal aid on or about 11 November 2013;

(5)   Legal aid was offered on 22 January 2014;

(6)   Legal aid certificate was issued on 18 February 2014 and solicitors were assigned;

(7)   USM was implemented on 3 March 2014;

(8)   Counsel was assigned on 12 May 2014; and

(9)   Form 86 was filed on 4 March 2016.

17.  It is clear from this chronology that the two CFA decisions were handed down long before the applicant’s legal aid application.  Counsel was assigned even later.  What the applicant said in his affirmation simply cannot be reconciled with counsel’s submission that the applicant was advised by counsel to wait for the effects of those judgments. By the time that counsel was assigned, USM was already implemented.  If the allegation of post traumatic stress suffered by the applicant was so serious that he was unable to give coherent instructions to his lawyers and caused the delay between assignment to the filing of Form 86, one would simply wonder how the advice of counsel and solicitors to wait for ramifications of the two CFA cases could ever get through to the applicant at all.

18.  The chronology reveals a totally lax attitude on the part of the applicant in pursuing his leave application.  I find that the attribution of the delay to CFA case untenable.  The attribution to the uncertainty surrounding the two CFA judgments is no more than pretence of falsehood.  Delay in the application for legal aid is the applicant’s own making.  All in all, the applicant has not diligently pursued his leave application.  Whilst the delay may be partially attributable to the applicant’s lawyers, even if the applicant was not at fault for any portion of the delay, Hartman J (“as he then was”) in Law Chun Loy said that:

“33. . . . even if the applicant was not found to be at fault for any portion of the delay, in the present case, in my view, it is plain that an overall delay of some 14 months was detrimental to good administration.”

B2.2  Detriment to good administration

19.  What is or is not detrimental to good administration must depend on the circumstances of each individual case.  The Court of Appeal in AW agreed with the judge’s assessment that:

“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.’

. . . ”

20.  The Court of Appeal noted the statistics quoted by Zervos J in HKSAR v Vu Thang Duong & Anr and remarked that “one does not have to look to the additional material sought to be placed before this court, as there is information on this in the public domain”.  Kwan JA said:

“I agree with Ms Tong it would clearly be detrimental to good administration to require the primary decision maker to assess the same issues twice, particularly given the large number of pending torture claims to be processed.”

21.  The same applies in the present case.  To allow this case to dwell on is prejudicial to the good administration of the Immigration Department.

22.  Further, as to whether this present leave application serve any utility purpose, I would like to reiterate my judgment in SA, which deals with issues not dissimilar to the present case.

“21. In Re RI, HCMP 3295/2013, the Court of Appeal, faced with a situation not dissimilar to the present, said that:

‘8. There is no suggestion that the Applicant is barred from submitting his CIDTP claim or Refugee claim to the Director for consideration under the USM (which has come into operation since March 2014). Nor is there any suggestion that he is subject to any risk of removal pending the processing of these claims . . .

9. Thus, the position we have is that there has not been any substantive determination of the CIDPT claim and the refugee claim by the Director. In these circumstances, we cannot see any reason why the Applicant should not be required to have his claims determined under the USM before the court entertains any application for judicial review regarding the same. . . .

10. . . . in the absence of a determination by the primary decision-maker when it is possible for an applicant to submit his or her CIDTP claim and/or Refugee claim to that decision-maker for consideration, it is pre-mature for the court to entertain such claims by way of judicial review. To allow such claims to be advanced in the absence of a primary decision is to arrogate the court to the role of a primary decision-maker. This is not the proper role of the court in an application for judicial review.’

22. The Court of Appeal in refusing to grant leave to appeal to the Court of Final Appeal in RI, said:

‘6. In any event, we refused to extend time mainly because the substantive merits of the applicant’s case in terms of his fear of persecution or risk of safety to his person should properly be canvassed in his USM proceeding which, we were told, were on foot . . . 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 hear 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.’

23. By the same token, the present judicial review serves no meaningful purpose for the following reasons. The venue to make his claim to the primary decision-maker has not been exhausted. He is still entitled to be screened under in the USM proceedings. The issue of torture can be canvassed again under the CIDPT claim since there is no need to establish any form of state acquiescence. So, given that wider scope, should the Applicant fail under those claims, his chance of success in his CAT claim would be tenuous. In any event, should the future screening fails, he still has his channel for redress by appealing to the Board and then taking out judicial review proceedings.

Having the same primary decision-maker deciding again what he is already entitled to under the new USM scheme is definitely detriment to good administration.

That said, what is at stake to the Applicant should leave be refused in this application is minimal . . . ”

23.  I am not persuaded that there are good reasons for extension of time.  I am not going to deal with the merits of this application.  The application for leave to apply for judicial review is refused.

C.   CONCLUSION

24.  For reasons aforesaid, the application for leave is dismissed.  There will also be an order nisi that the applicant pays the Director’s costs of the application.

25.  Whilst counsel has conceded in his written submissions that “leave hearing should be brief”, the Form 86 runs up to 60 pages with 311 paragraphs, only 40 of which dealt with extension of time.  The exhibits referred to in the other paragraphs consist of documents such as minutes of arrest by the police; Director’s memorandum and minutes; various letters sent by the Director to the applicant, copy of Press Release regarding implementation date of the USM;  Hong Kong Bar Association “Unified Screening Mechanism for Non-Refoulment Claims”; Michael Ramsden and Luke Marsh “Refugees in Hong Kong; Developing the Legal Framework for Socio economic Rights Protection” Human Rights Law review Vol 14 Issue 267; Australia Government – Department of Immigration and Border Protection “Asylum Trends” 2016.  All these run up to 10 lever-arched files but which served no meaningful purpose for this leave application.  None was referred to at the hearing, and even if counsel were going to refer to them, I would not have allowed him to do so.  I disallow legal aid taxation for preparation of the hearing bundles.