AMANDEEP SINGH v. DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL1087/2017

[2018] HKCFI 2765

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1087 of 2017

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s Decision (Ord. 53 r. 3)

Following:

	consideration of documents only
	consideration of documents and oral submission by the Applicant in open court

(1)   Extension of time for application for leave to apply for judicial review of the decision of Torture Claims Appeal Board dated 23 February 2017 be refused; and

(2)   Leave to apply for judicial review be dismissed.

It is further directed that:

(1)   If the applicant intends to appeal against the order refusing to extend the period for making the application for leave to apply for judicial review to the Court of Appeal, he must first apply to this court within 14 days of the date of this order by way of summons for leave to appeal;

(2)   When filing the application for leave to appeal, the applicant must at the same time file with the court written submissions of not more than 5 pages in support of the application for leave to appeal;

(3)   The court will thereafter decide whether it is necessary to direct the summons and the written submissions to be served on the putative respondent(s) and whether the application for leave to appeal shall be determined on paper;

(4)   If the court decides that the application for leave to appeal shall be determined on paper, it will proceed to do so without further directions; and

(5)   Liberty to apply.

Observations for the Applicant

Background

1.  The Applicant is a national of India. He is now aged 29 (DOB: 10 April 1989).

2.  The Applicant claimed he would be killed by the Jaswinder family and a money lender called Dharminder.

3.  The Applicant came to know Jaswinder in 2013. Jaswinder was the Youth President of the Akali Dal Party (“ADP”), which was the ruling party in Punjab. Jaswinder ran a trading business. He asked the Applicant to import second-hand goods from Hong Kong. The Applicant took his advice. He borrowed 300,000 rupees from a businessman called Dharminder, who was a member of the Indian National Congress Party (“INC”). The Applicant said Dharminder had connection with a member of the Legislative Assembly.

4.  In May 2013, the Applicant came to Hong Kong with Jaswinder to buy goods. However, Jaswinder took all the money and went back to India. The Applicant stayed in Hong Kong. He reported Jaswinder’s theft to the Hong Kong police.

5.  In India, the Applicant's father and uncles learnt about the theft. They went with some villagers to Jaswinder’s home. The two sides had a fight. During the commotion, Jaswinder’s brother Jaspal was killed accidentally. The Applicant’s father was also badly injured.

6.  Jaswinder’s family reported the matter to the India police. The Applicant’s family had to live elsewhere in order to avoid the police and the ADP people. The Applicant said his life was at risk if he returned to India because the ADP people looked for him to avenge the death of Jaspal.

7.  Meanwhile, Dharminder pressed the Applicant to repay the loan. He told the Applicant's brother-in-law in India that he would kill the Applicant if the latter failed to repay. The Applicant feared Dharminder because the latter had political connections.

8.  The Applicant heard his family in India received a complaint from the police regarding Jaspal’s death. The complaint was against the Applicant, his father and a few others. The Applicant's father was later arrested and detained for a month before release.

9.  The Applicant was only allowed to stay in Hong Kong till 10 June 2013. He chose to overstay due to his fear of returning to India.  The Applicant was arrested on 25 June 2013. He made a torture claim later that month. Two months later, he raised a non-refoulement claim.

10.  The Applicant said he was falsely accused by his enemies, who were connected with influential political parties. The authorities in India were corrupt and influenced by politicians. The Applicant feared the India police would arrest him and prosecute him for killing Jaspal.

11.  The Applicant did not think internal relocation was viable. He said he lacked the means to do so and his enemies could locate him easily.

12.  In the ensuing two-tier screening process here, the Director of Immigration (“the Director”) and the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (“TCAB/NCPO” or simply “the Board”) respectively refused the Applicant’s claim with respect to all the four applicable grounds: (i) risk of torture,[1]  (ii) risk of persecution,[2] (iii) risk of torture or cruel, inhuman or degrading treatment or punishment (BOR3 risk)[3]  and (iv) risk of violation of the right to life (BOR2 risk)[4].

13.  On 15 December 2017, the Applicant applied for leave for judicial review.

Timeline

14.  Things happened in this order: –

2013-5-27	The Applicant entered Hong Kong as visitor. He was allowed to stay until 10 June 2013.
2013-6-25	The Applicant was arrested by the police after having overstayed from 11 June 2013.
2013-6-27	The Applicant raised a torture claim.
2013-8-16	The Applicant raised a non-refoulement claim.
2016-3-4	The Director refused the Applicant’s claim with respect to these three applicable grounds: (i) torture risk, (ii) persecution risk and (iii) BOR3 risk. [ “the Director's decision “]
2016-11-18	The Director invited the Applicant to submit additional facts for the consideration of BOR2 risk.
2016-12-2	The Applicant failed to submit additional facts by the deadline or thereafter.
2016-12-5	The Director refused the Applicant’s claim with respect to the fourth applicable ground: BOR2 risk. [ “the Director's further decision “]
2016-12-15	The Applicant appeared before the Board for appeal.
2017-2-23	The Adjudicator refused the Applicant’s appeal with respect to all the four applicable grounds. [ “the Board's decision “]
2017-12-15	The Applicant applied for leave for judicial review.

Respondents

15.  The Unified Screening Mechanism is a two-tier process.  The Director screens an applicant’s non-refoulement claim first; the applicant may appeal to the Board which deals with his/her case on a rehearing basis.

16.  In Form 86 (the notice of application for leave to apply for judicial review), the Applicant named the Director and the Adjudicator as respondents.

17.  The Adjudicator was not acting in his personal capacity. He represented the Board. In court, the Applicant agreed to change to sue the Board in lieu of the Adjudicator. Thus, the Director is the first putative respondent; the Board is the second putative respondent.

18.  In Re Moshsin Ali, the Court of Appeal states that “the decision of the immigration officer is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the board is pursued by a claimant.”[5] The Applicant cannot seek leave for judicial review against the Director's decisions. Therefore, I shall deal with his application in relation to the Board's decision only.

The Director's decision

19.  In his decision dated 4 March 2016, the Director did not accept the Applicant faced any torture risk, persecution risk or BOR3 risk. He also considered reasonable state protection and internal relocation were available to the Applicant in any event.

20.  In his further decision dated 5 December 2016, the Director refused the Applicant’s claim with respect to the fourth applicable ground: BOR2 risk.

The Board's decision

21.  The Applicant appealed to the Board. The Adjudicator interviewed the Applicant on 15 December 2016. 

22.  The Adjudicator found there were vague, inconsistent, unconvincing and contradictory features in the Applicant’s allegations. He did not find the Applicant a truthful witness. He did not accept the Applicant’s claim that he borrowed money from Dharminder, that Jaswinder stole the money or Jaswinder’s brother Jaspal was killed.[6]  The Adjudicator was not satisfied the Applicant faced any torture risk, persecution risk, BOR2 risk or BOR3 risk.

23.  On 23 February 2017, the Adjudicator refused the Applicant’s claim with respect to all the four applicable grounds.

Grounds of judicial review

24.  In Enclosure 2 of Form 86, the Applicant made complaints against the Director and the Adjudicator. As said in paragraph 18 above, I shall deal with his application in relation to the Board's decision only as the Director's decisions had gone on appeal to the Board.

25.  The Applicant complained the Adjudicator failed to make sufficient enquiry and failed to note that he had no or limited options to bring his evidence since he was in custody at the immigration detention centre.

26.  The Applicant also said the Adjudicator failed to give him sufficient chance to arrange relevant evidence for his appeal.

Court hearing

27.  The hearing took place on 16 May 2018. The Applicant was in person. A Punjabi interpreter provided interpretation service in court.

28.  The Applicant confirmed all the grounds of judicial review were in Enclosure 2 of Form 86. He did not elaborate them except saying he was only given a week to prepare for his appeal.

29.  The Applicant said he had not been able to submit all the proofs to the Director and the Adjudicator. He claimed he only managed to get hold of some police documents from India in July 2017 despite he had been trying to get them as early as 2014. The Applicant said he had to bribe the police in India with a friend’s assistance to get hold of those documents finally.

30.  The Applicant only filed the current application for judicial review on 15 December 2017, almost 10 months after the Board’s decision had come out on 23 February 2017. He said he was not aware of the Board’s decision. He was alerted by the Immigration Department in April 2017 when he signed for recognizance. The Applicant said he only knew he could apply for judicial review when he was arrested for failing to sign for recognizance at the Immigration Department in December 2017. He was not aware he had to file his application for judicial review within three months of the Board's decision.

Discussion

31.  Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.

32.  A non-refoulement claim involves ‘life and limb’; any decision will bear significant consequences on an applicant.  Therefore, high standards of fairness must be achieved.  The court should look at an applicant’s case under ‘rigorous examination and anxious scrutiny’.[7] Nevertheless, it is said in Re Islam Rafiqul: –

“The role of the Court in a judicial review is not to provide a further avenue of appeal. The primary decision-makers are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of issue at hand, the Court should not usurp the role of the Board. Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The Court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.” [8]

Late application for leave for judicial review

33.  Order 53 Rule 3(1) of the Rules of the High Court reads: –

(1)  No application for judicial review shall be made unless the leave of the Court has been obtained in accordance with this rule.

34.  Order 53 Rule 4(1) and (2) of the Rules of the High Court read: –     

(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. (L.N. 356 of 1988)

(2)  Where the relief sought is an order of certiorari in respect of any judgment, order, conviction or other proceeding, the date when grounds for the application first arose shall be taken to be the date of that judgment, order, conviction or proceeding.

35.  It is clear from these provisions that no application can be made after the three-month period unless the Court considers there is a good reason for extending time. The Applicant must provide good reasons for the Court to approve extension of time. It is a pre-requisite in late application for leave for judicial review.[9]  If the court is not satisfied there is a good reason for extending time, then no application for judicial review can be made in accordance with Rule 4(1).  In that event, the Court should not proceed to consider if leave should be granted or refused on other grounds.[10]

36.  In the present case, the Board’s decision was issued on 23 February 2017. The Applicant said he was not aware of the Board’s decision, which was sent to his reported address then. He was alerted by the Immigration Department in April 2017 when he signed for recognizance. The Applicant said he only knew he could apply for judicial review when he was arrested for failing to sign for recognizance at the Immigration Department in December 2017. He was not aware he had to file his application for judicial review within three months from the date of the Board's decision.

37.  The Applicant said he was not aware of the Board’s decision in late February 2017. It was bare assertion. The Board's decision was sent to his reported address and there was no returned mail. Even if the Applicant was only aware of such decision in April 2017 as he claimed, he was still late by many months when he eventually filed the current application for leave for judicial review on 15 December 2017. His ignorance of having to do so within three months of the Board's decision was no good reason for the lateness.

38.  The Applicant filed the current application almost 10 months after the Board's decision dated 23 February 2017. Excluding the 3-month grace period for filing, he was late by almost 7 months.

39.  There was no good reason for the delay, which was undue and substantial. The prejudice that would be caused to the putative respondents was not insignificant and discipline should be maintained in the area of public law. The current application for leave for judicial review involved no issue of general importance and the Applicant's argument had no merits at all (see below).

40.  The Applicant complained the Adjudicator failed to make sufficient enquiry and failed to note he had no or limited options to bring his evidence since he was in custody at the immigration detention centre. The Applicant also said the Adjudicator failed to give him sufficient chance to arrange relevant evidence for his appeal.

41.  The Director in his letter dated 23 November 2018 confirmed the Applicant was released on recognizance on 23 August 2013. He was only taken into custody again by the Immigration Department between 22 November 2017 and 4 January 2018. Thus, the Applicant was not in custody around the time when he attended the Board hearing on 15 December 2016. In any event, there was nothing to support the Applicant's claim that he had been hindered from proving his claim.

42.  The Applicant said he was given only one week to prepare for his appeal. Again, that was bare assertion. In any event, he made no complaint to the Adjudicator or asked for adjournment during the Board hearing. He failed to prove he really needed more time to prepare for his appeal then.

43.  The Applicant said he now had more documents from India to prove his case. However, he failed to justify why he could not have obtained them earlier. He also failed to prove those were crucial documents for his claim. I am satisfied the Applicant had been given sufficient time and chance to prove his case as much as he could.

44.  I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. The Adjudicator had proper basis for his finding, conclusion and decision which were not Wednesbury unreasonable. He made no errors of law and there was no procedural unfairness. The Adjudicator had engaged in joint endeavour with the Applicant in the screening process. The Applicant had been given reasonable and sufficient opportunities to state and elaborate his case. The Adjudicator was acquainted with the facts. He considered the Applicant's case carefully and applied the law correctly. The Adjudicator had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim.

Conclusion

45.  The current application for leave for judicial review is unjustifiably late. There are no circumstances that oblige the court to consider such late application. I refuse to grant the Applicant extension of time. His late application for leave for judicial review is dismissed.

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1