AM AND OTHERS v. THE DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 10/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTATIVE LAW LIST

NO. 10 OF 2015

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DECISION

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Introduction

1.  All the Applicants are in the same family. They obtained an ex parte leave to apply for judicial review granted by Au J on 30 March 2015. The ex parte leave was granted expressly without prejudice to the Respondents’ right to oppose the application on the ground that there is no extension of time to be granted to the Applicants.

2.  This is an application of the 1^st Respondent to set aside the ex parte leave on the grounds of (a) delay (b) lack of utility of this judicial review and (3) material non-disclosure. The 2^nd Respondent takes a neutral stance in this application and has obtained leave to be excused from attending the hearing.

3.  Ms Chow, for the 1^st Respondent, submits that this application is prompted by the decision of the Court of Appeal in BH & BI v Director of Immigration, unreported, CACV 9, 103 & 134/2015, 8.3.2016 in which the Court of Appeal held that unless leave is set aside, the court has no jurisdiction to re-open the question of leave at the substantive hearing.  Mr Tibbo, for the Applicants, does not disagree.

Material background facts

4.  These background facts are not in dispute. The Applicants’ made their torture claims under Article 3 of the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“Torture Convention”). The 1^st Respondent dismissed their torture claims by his decision dated 19 February 2013.

5.  The Applicants made a joint non-refoulement claim under the illegal screening mechanism on 28 February 2013. The Immigrant Department gave them written notice on 10 February 2014 that their non-refoulement claim would be considered under the Unified Screening Mechanism (“USM”), which would be implemented on 3 March 2014.

6.  On the other hand, the Applicants appealed against the dismissal of their torture claims by the 1^st Respondent. The 2^nd Respondent, Deputy Chairperson of the Torture Claims Appeal Board (“TCAB”), by his decision dated 19 April 2013 dismissed their appeal.

7.  The Applicants apply leave to apply for judicial review in respect of the TCAB decision only on 20 January 2015, i.e. 21 months after the TCAB decision was made. In the Form 86 jointly filed by the Applicants, they have made no mention about the fact that their non-refoulement claim would be considered under the USM.

8.  The 1^st Respondent argues that the delay was inordinate and inexcusable and no extension of time should be granted. Further, Ms Chow contends that their torture claims will be assessed under the USM in any event and their judicial review lacks utility. Lastly, when applying for leave to apply for judicial review, there was a material non-disclosure in that the Applicants failed to frankly and fully disclose the USM would assess their non-refoulement claim.

Applicable legal principles

9.  The starting point is O.53 r.4(1) of the Rules of the High Court which provides,

“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 consider that there is good reason for extending the period within which the application shall be made.”

10.  Lam JA in AW v Director of Immigration and Anor. CACV 63/2015, 3 November 2015, set out the principles relating to applications for extension of time to apply for judicial review by way of a summary of such principles expounded by G Lam J in Re Thomas Lai [2014] 6 HKC 1 at §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 ….

(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 ….

(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.”

11.  In the present case, in the Form 86 consisting of 338 paragraphs, the Applicants give the following reasons for the delay:

(1)  On 2 May 2013, the Applicants applied for legal aid for the purpose of their intended judicial review. It was granted on 21 January 2014.

(2)  The current solicitors were assigned to act for the Applicants on 28 January 2014 and Mr Tibbo was instructed to act for them on 24 February 2014. In March 2014, the Applicants sought discovery by the Duty Lawyers Services in respect of their previous application but were unsatisfied with their response.

(3)  It was decided by the Applicants that it was in their best interests to wait until the judgment in Mallawa Arachchige Amitha Privanganie Mallawa Arachichi v Wesley Wong HCAL 1/2014, 8.9.2014 (Mr Tibbo was involved as counsel) to file their Form 86.

(4)  The 1^st Applicant was observed to be in poor health and consulted a clinical psychologist Dr Batra in April 2014. The 3^rd Applicant, a minor, broke his hand and hospitalised for treatment. Troubled by the physical condition of his child, coupled with his mental health problem, the 1^st Applicant was not available to have a conference with his legal advisors in June 2014.  

(5)  The 1^st Applicant applied to have legal aid to obtain a medical report from Dr Batra to support his intended leave application but was refused by the Legal Aid Department (“LAD”) on 15 October 2014.

(6)  On 13 October 2014, nevertheless the LAD granted the Applicants’ application for an extension of the scope of their legal aid certificate made on 10 October 2014 to include a challenge to the 1^st Respondent’s decision and to apply for an anonymity order, and an anonymity was eventually granted on 29 December 2014.

(7)  The Applicants and their legal representatives have acted in good faith and expeditiously. There is no prejudice to the Respondents.

12.  Mr Tibbo points out there was a delay of nine months for legal aid to be granted to the Applicants (from May 2013 to January 2014). He says the material delay started from March 2014 when he was instructed to December 2014 the full month before the filing of the Form 86. For these nine months, Mr Tibbo first blamed the previous legal advisors of the Applicants for the poorly prepared Questionnaire and he needed extra time to prepare the Form 86 as a result.

13.  Mr Tibbo further seeks to explain away the delay with reference to the Mallawa case. He submits that the real delay is only six and a half month.

14.  I cannot accept his submission in light of the chronology of this matter. In the first place, an application for legal aid is only but one of the factors that the court would consider whether there are good reasons to justify an extension of time notwithstanding a stay: Mui Mei Fung v Secretary for Justice for Commissioner for Labour, unreported, HCAL 145/2013, 16.1.2014 per Au J at §29.

15.  Further, it should be noted that the mere lack of legal assistance is not regarded as a sufficient basis for an extension of time: Nisa Azizan and Anor. v Director of Immigration and Anor., unreported, HCAL 203/2015, 15.4.2016, per Chow J at §57. Even if the Applicants did not have any legal aid or pro bono assistance for a while, they could be exempted from the time limit stated in O.53 r.4(1) of the Rules of the High Court.

16.  Where an applicant attributes the delay to the process of obtaining legal aid, it is incumbent on him to demonstrate he had exercised due diligence in the making and processing of that application: Re Thomas Lai at §48(2) approving Re Ho Mei Ling [2011] 6 HKC 1 at §108 Mui Mei Fung v Secretary for Justice (for Commissioner for Labour) [2014] HKCU 117.

17.  Apparently it took the Applicants almost nine months to obtain legal aid. The LAD by way of its letter dated 31 March 2016 provided a chronology of their legal aid application. Though Mr Chow rightly points out that this letter has not been verified by an affirmation, I do not have any reason to doubt its accuracy and no contrary evidence has been adduced.

18.  I have gone through the chronology stated in the said letter. Two matters are of particular importance. I note that on 8 June 2013, the Applicants’ solicitors provided a pro bono advice from Mr Tibbo in support of their application made on 7 May 2013. It must mean that Mr Tibbo was in a position to advice on the merit of their intended application prior to 8 June 2013 (“the Advice”). Further, on 12 July 2013, the Applicants wrote to LAD and notified them that the Applicants would wish to proceed with their applications for judicial review as advised by Mr Tibbo.

19.  Against this background, once legal aid was granted in early 2014, the Applicants should proceed with their intended application for judicial review with full promptitude in light of the Advice and their unequivocal intention to do so. They should show some sense of urgency after the delay however excusable. However, the first conference was only held in April 2014.

20.  It is extraordinary that they allowed their Form 86 to be filed almost one year later. I am not convinced that the mental health condition of the 1^st Applicant in any way hindered the progress as alleged. As a responsible counsel, though on a pro bono basis, Mr Tibbo should have a reasonable grasp of the basic facts when he rendered the Advice in support of the Applicants’ application for legal aid.

21.  I have also gone through the Form 86. Despite its prolixity, the Applicants’ case is simple and straightforward factually. Its length is very much attributable to its extensive citations of established authorities. I do not accept that it is reasonable for the Applicants to have this document prepared only an year after they were granted legal aid and more than eighteen months after they obtained the Advice.

22.  Nor do I accept that the Applicants could explain away the delay by reference to the Court of Appeal’s decision in ST v Betty Kwan & Anor., CACV 115/2013, .6.2014 and the Mallawa case. In particular, as submitted by Ms Chow, the latter was decided on its own facts and has little bearing on the Applicants’ case. In any event, their Form 86 could be prepared and filed without reference to these two decisions.

23.  Guided by AW, I thus conclude that the lengthy delay has not been explained with cogent reasons and prima facie there is no good reason to grant the extension of time.

24.  For the present purposes, the 1^st Respondent says nothing about the merits of the Applicants’ substantive application for judicial review. Nor does Mr Tibbo address this court on its merits. I can consider the Applicants’ application for a time extension on the basis that their intended judicial review is meritorious.

Prejudice

25.  Now I turn to the issue of prejudice. Ms Chow submits that the Applicants’ non-refoulement claim would be processed in the USM in any event and in light of this alternative remedy, the Applicants would not be prejudiced if time extension is not granted.

26.  This submission is supported by good authorities. First, M Poon J in SA v Torture Claims Appeal Board and Ors., unreported, HCAL 77/2015, 14.9.2015 held that the judicial review there served no meaningful purpose in that the applicant was still entitled to be screened under the USM proceedings and the issue of torture would be canvassed again under the CIDPT claim. A similar conclusion was reached in AW where Lam JA set out the following reasons of the judge below with approval:  

“The present judicial review would serve no useful purpose:

(1)  as the applicant has filed a claim under the USM, he would be assessed on the CIDTP claim based on the information and documents submitted under his CAT claim;

(2)  the CIDTP claim is wider in scope in that there is no need to establish involvement by the state or a public official, nor is there any need to consider acquiescence as under the CAT claim;

(3)  given the wider scope of the CIDTP claim, the applicant might be accepted under the CIDTP claim despite he had been rejected under the CAT claim;

(4)  if he is rejected under the CIDTP claim, there is very little chance he could be accepted under the CAT claim; and

(5)  even if he is rejected under the CIDTP claim, he may petition to the adjudicator again and if need be apply for judicial review of the adjudicator’s decision.”

27.  In light of these authorities, I agree with Ms Chow that the Applicants would suffer little prejudice if they fail to obtain the time extension and their leave application is to be dismissed on that basis. Their alternative remedy by way of their non-refoulement claim renders their intended judicial review otiose.

28.  Mr Tibbo argues that this court should not follow AW. He refers this court to some Canadian case law and submits that the USM mechanism cannot adequately protect the human rights of the Applicants. I do not find it necessary to deal with such authorities here. He levies heavy criticisms on the USM. He further makes references to certain statistics and highlights to this court that no applicants has ever succeeded in the USM proceedings.

29.  I am not convinced that I have any valid basis to deviate from AW notwithstanding the tenacious submissions of Mr Tibbo. I too conclude that the present judicial review serves no meaningful purposes given the non-refoulement claim of the Applicants to be assessed in the USM.

30.  On the other hand, the unchallenged evidence is that as at end June 2015, the total number of non-refoulement claims pending determination by the Immigration Department stood at 9,940. In AW, Lam JA looked at a similar number and upheld the finding that it would be detrimental to good administration to require the primary decision make to assess the same issues twice in light of the large number of pending torture claims to be processed. I believe I should reach the same conclusion here.

31.  Lastly, Mr Tibbo seeks to argue that in the Applicants’ judicial review would raise a question of general public importance, namely, the deficiency of the USM. This submission is alarming. With respect, this cannot be something to be canvassed in the judicial review if a time extension is given.

32.  In view of the whole circumstances of this matter, for the reasons given above, I am of the view that the Applicants have not conducted themselves reasonably and sensibly in handling the refusal of their claim by the 1^st Respondent. There is no simply good reasons for a grant of time extension after such a lengthy delay. I thus refuse to exercise my discretion to extend the time for the purpose of the Applicants’ application for judicial review.

33.  I conclude that the ex parte leave should be set aside by reason of the lack of good reason to grant an extension of time.

Lack of utility and Material non-disclosure

34.  Given my conclusion above, there is no need to consider these two further grounds of the 1^st Respondent’s application. However, for completeness, I would also point out that these are valid grounds to set aside the ex parte leave as well.

35.  I have already explained why the Applicants’ intended judicial review serves little purpose given their non-refoulement claim to be processed in the USM. I need not repeat.

36.  For the allegation of material non-disclosure, the 1^st Respondent relies on the fact that the Applicants made no mention about their ongoing non-refoulement claim in the USM in their Form 86 and elsewhere when they applied for the ex parte leave.

37.  Ms Chow helpfully draws my attention to TH v Director of Immigration, unreported, HCAL 114/2014, 20.7.15 where Chow J had this to say about material non-disclosure in the context of judicial review at §57:

“In my view, having regard to the considerations mentioned in paragraph 54 above, any failure on the part of an applicant to comply with the duty of full and frank disclosure when seeking, on an ex parte basis, an extension of time to apply for leave to apply for judicial review should generally be regarded as a serious matter, whatever may be the reason or reasons for such failure, and the court must be astute to prevent an applicant from gaining any procedural or substantive advantage obtained from his failure to comply with such basic duty.”

38.  At the outset of the hearing, I allowed the Applicants to adduce the 3^rd Affirmation of AM, which sought to explain why the Applicants’ legal representatives had failed to inform the ex-parte judge about their non-refoulement claim to be assessed in the USM.  AM explained that he had omitted to tell his lawyers and there was no intention to conceal anything from the court on his part.

39.  Even if I accept that the non-disclosure was a mere inadvertent omission, it was still very much material and the non-compliance with the duty of full and frank disclosure must invite the setting aside of the ex parte leave.

40.  In the premises, I accept the validity of these two further grounds and the ex parte leave must be set aside.

Conclusion

41.  For the reasons given, I allow the application of the 1^st Respondent. I order that the ex parte leave be set aside.

42.  Costs should follow the event. I make an order nisi that the Applicants should pay both of the Respondents their costs of these proceedings including this application to be taxed if not agreed.

43.  The Applicants are legally aided and I make an order that their own costs be taxed in accordance with the Legal Aid Regulations.

44.  Lastly, I thank Ms Chow for her helpful submissions.