TMF v. DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 214/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 214 OF 2015

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J U D G M E N T

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Introduction

1.  This application for leave to apply for judicial review (the “Application”) concerns the applicant’s non-refoulement claim under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”) made on 19 September 2006.  The applicant seeks relief against two Decisions made by the Director of Immigration (the “Director”), respectively the rejection of his CAT Claim on 16 November 2012 and a further Decision made on 4 December 2012 maintaining the Decision to reject the applicant’s CAT Claim.  The applicant further seeks relief against three Decisions made by the 2^nd putative respondent (the “Adjudicator”), respectively the refusal of the late filing of his appeal on 9 January 2013, a further Decision made on 23 January 2013 not to give further explanations and a Decision on 25 February 2013 to maintain the refusal Decision.

2.  The Application was only filed nearly two years and nine months later on 4 November 2015.  Therefore, in the Form 86, the applicant sought an extension of time to make the Application under Order 53, rule 4(1) of the Rules of the High Court.

3.  By order of this court given on 22 February 2016, it was directed that the applicant’s application for an extension of time is to be heard on an inter partes basis at an oral hearing.

4.  In these proceedings, in gist, the Director opposes the application for time on grounds of (i) inexplicable undue delay on the part of the applicant; and (ii) lack of utility of the present proceedings, without any need for the court to deal with the merits of the proposed grounds of challenge.

Factual background

5.  A brief background of this case has been helpfully set out in the Director’s Skeleton Submissions as follows.

6.  The applicant is a Sri Lankan national who claimed to have entered Hong Kong on 28 June 2006.

7.  On 12 September 2006, the applicant was arrested by Police for suspected overstaying.  He was subsequently referred to the Immigration Department for investigation on 14 September 2006.

8.  Upon further enquiries made by the Immigration Department, despite the applicant’s claim that he had entered Hong Kong on 28 June 2006, no immigration records were found of his claimed arrival.  

9.  On 19 September 2006, the applicant lodged a torture claim with the Immigration Department on the ground that if he were to be returned to Sri Lanka, his life would be at risk from people who were searching for him, and who have broken the mosque in his hometown and had killed his brother.

10.  A “Notice to Person Making a Claim under the CAT” (“Notice”) and a blank “Questionnaire for Persons who have made Claims under Article 3 of the CAT” (“Questionnaire”) were served on the applicant under the then screening mechanism on 18 October 2006.

11.  On 25 October 2006, the applicant submitted a completed Questionnaire to the Immigration Department (“1^st completed Questionnaire”).  Screening interviews were then conducted with the applicant.

12.  The assessment of the applicant’s CAT claim was suspended following the decision of FB v Director of Immigration [2009] 2 HKLRD 346, until 24 December 2009 when the then enhanced administrative screening mechanism was put into place.  The applicant was informed of the resumption by letter of 6 January 2010.

13.  On 27 September 2012, an updated Notice and blank Questionnaire were served on the applicant, and he was further referred to seek the assistance of the Duty Lawyer Service (“DLS”) on the same day.  The applicant was reminded to return a completed Questionnaire within 28 days (ie: by 25 October 2012).

14.  However, despite the Immigration Department’s repeated reminders to the applicant (via the DLS) to return a completed Questionnaire for further assessment of his claim together with short extensions of time granted to him, the applicant still failed to complete and submit a Questionnaire to the Immigration Department. 

15.  On 16 November 2012, the applicant’s CAT claim was refused by the Director and he was formally informed of the decision in writing.  Further, he was informed that if he was aggrieved by the decision, he must file a Notice of Petition within 14 days.

16.  On 30 November 2012, two weeks after the applicant’s CAT claim was refused, the applicant submitted a completed Questionnaire to the Immigration Department (“2^nd Questionnaire”).

17.  On 4 December 2012, the Immigration Department wrote to the applicant to inform him again that his CAT claim had been refused by the Director on 16 November 2012.

18.  On 21 December 2012, the applicant’s Notice of Appeal against the Director’s decision was lodged.  The Notice of Appeal did not state any grounds of appeal (which were stated to “follow shortly”) and only gave his reasons for late filing. 

19.  By the Torture Claims Appeal Board (“TCAB”) decision of 9 January 2013, the applicant’s late filing of the Notice of Appeal was refused. 

20.  The applicant’s grounds of appeal were eventually submitted to the TCAB on 4 February 2013; further supplemental grounds were submitted on 7 February 2013.

Principles in application to extend time

21.  As pointed out in paragraph 1 above, the Decisions challenged by the applicant were made on 16 November 2012, 4 December 2012, 9 January 2013, 23 January 2013 and 25 February 2013 respectively.  The Application was not taken out until 4 November 2015.  Hence, there is very substantial delay involving a period of much more than three months since the last Decision: Order 53, rule 4(1) of the Rules of the High Court and section 21K(6) of the High Court Ordinance, Cap. 4.

22.  Where there has been a failure to act promptly or within three months, there is “undue delay”.  Even though the court may be satisfied in the light of all the circumstances there is good reason for that failure, nevertheless the delay, viewed objectively, remains “undue delay”, and the court may refuse to grant leave for the making of the application or refuse relief if it considers that the granting of the relief would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration [see: AW v Director of Immigration [2016] 2 HKC 393 (“AW”), paragraph 26].

23.  In AW, the Court of Appeal further summarized the principles to be applied in an application to extend time for judicial review at paragraph 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 (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 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 (Law Chun Loy v Secretary for Justice [2006] HKCU 1795, HCAL 13/2005 (26 October 2006), at §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.

(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.”

Length of the delay

24.  The length of the delay here (beyond the initial three-month period) is close to two years and six months.

Explanation for the delay

25.  As regard explanation for the undue delay, the applicant seems to account significant periods of time after the handing down of the Decision to applications relating to legal aid.  It is now well-established that there is no general proposition that time taken in obtaining legal aid is a good reason for extending time.  Instead, it is only one of the factors that the court will consider on whether there is good reason to justify an extension of time notwithstanding the delay [see: eg, Re Thomas Lai [2014] 6 HKC 1, at paragraph 48(1); Mui Mei Fung v Secretary for Justice for Commissioner for Labour, HCAL 145/2013 (Decision dated 16/01/2014), at paragraph 29 and Nisa Azizan v Director of Immigration, HCAL 203/2015 (Judgment dated 15/04/2016), at paragraph 57].

26.  Furthermore, where an applicant attributes the delay to the process of obtaining legal aid, it is incumbent on him to demonstrate that he had exercised due diligence in the making and processing of the application [see: Re Thomas Lai (Supra) at paragraph 48(2)].  In the present case, there is simply no evidence in this regard.

27.  Moreover, it has been held that where an applicant wishes to rely upon the time taken to obtain legal aid as an explanation for the delay in making his leave application, the applicant should in his Form 86 provide a full chronology regarding his legal aid application.  The chronology should be verified or confirmed by the relevant legal aid officer who may provide such further information and explanation as may be appropriate or necessary either in a letter or by way of an affidavit [see: BH v Director of Immigration, HCAL 105/2014 (Judgment dated 14/04/2015), at paragraph 103, endorsed by the Court of Appeal in BI & BH v Director of Immigration, CACV 9/2015, CACV 103/2015 and CACV 134/2015 (Judgment dated 8/03/2016), at paragraph 131].  I can see no step taken by the applicant and those acting for him in the present case to obtain any confirmation from the Director of Legal Aid.

28.  A second purported explanation for the delay by the applicant seems to be that time was required and taken to obtain various documents and materials to support the Application.

29.  In this regard, it was held by the Court of Appeal in AW at paragraphs 38 and 39 that the most relevant documents were the decisions of the Director and the Adjudicator.  The applicant should have already had these as well as all the other documents which he had used to support his CAT claim, at the time when the Decisions were made. 

30.  A third purported explanation for the delay seems to be that substantial time was required for the applicant’s legal representatives to take instructions.  I agree that the delay for this reason is plainly inexcusable.   

31.  A fourth purported explanation by the applicant is attributed to the waiting of judgments.  In this regard, as the Court of Appeal has pointed out in AW at paragraphs 40 to 46, there is no reason why the applicant could not have filed an application for judicial review first and sought leave to amend to add further grounds in the light of the subsequent decisions.

32.  Insofar as the applicant seeks to attribute the delay to the waiting for the implementation of the Unified Screening Mechanism (“USM”), the applicant’s position is self-contradictory – on the one hand he said he was waiting for the USM, on the other hand, after lodging a CIDTP claim under the USM in 2014, he also subsequently launched these proceedings in respect of the refusal of his CAT claim.

33.  At the hearing on 23 September 2016, counsel for the applicant, Mr Mark Sutherland submitted to the court a “Psychological Evaluation” dated 21 September 2016 stating that the applicant may have been suffering from post-traumatic stress disorder.

34.  In this regard, Mr Jesse Yu for the Director submitted (and I agree) that in the Psychological Evaluation there is simply no explanation as to how the mental condition of the applicant outlined therein caused or affected the undue delay involved in the present case.  In other words, there is insufficient nexus between the alleged mental condition and the undue delay.

35.  In conclusion, I agree that, overall, there is no good explanation offered by the applicant for the undue delay in the present case.

Merits of the substantive application

36.  At the hearing, Mr Sutherland placed great reliance on the merits of the substantive challenge.  However, I do not find it necessary to comment on the merits of the substantive challenge, as I take the view that, for the reasons stated below, the applicant’s application for judicial review can serve no useful purpose and will be detrimental to good administration.  This approach has been endorsed by the Court of Appeal in AW at paragraphs 52 and 73.

Lack of utility and detriment to good administration

37.  Given the applicant’s outstanding CIDTP claim, I agree that the present judicial review proceedings serve no meaningful purpose for the reasons that the venue to make his claim to the decision-maker has not been exhausted: the applicant is still entitled to be screened under the USM. Given the wider scope of the CIDTP claim, should the applicant fail in his claim under the USM, his chance of success in his CAT claim would logically be tenuous [see: NK v Lam Kui Po William Deputy Chairperson of the Torture Claims Appeal Board, HCAL 18/2016,(Decision dated 4/07/2016), at paragraph 49].

38.  Furthermore, I agree with Mr Yu that allowing the present proceedings to proceed would in any event, be detrimental to good administration.

39.  The Administration is burdened with the prolonged responsibility of screening the claims and caring for CAT claimants. The community is concerned that a legitimate torture claim should be dealt with promptly.  To allow an extension of time where there has been unjustifiable undue delay is detrimental to the administration of effective immigration control.  As such, delay in bringing judicial review proceedings plainly prejudice good administration in the exercise of effective immigration control [see: eg, Pagtama Victorina Alegre v Director of Immigration, HCAL 13, 45 & 56/2014 (Judgment dated 12/01/2016), paragraph 238(3); Nisa Azizan (Supra), paragraph 63].

40.  In AW v Secretary for Security & Ors, HCAL 91/2013 (Judgment dated 26/01/2015) at paragraph 34, P Li J considered that it is in the interest of all parties and in the interest of good administration that CAT cases should be disposed of promptly and efficiently.  On appeal in AW, the Court of Appeal upheld the Court of First Instance’s refusal to grant extension of time and leave to apply for judicial review.  It was held that whilst there were factors urged in favour of the applicant, namely the merits of the substantive challenge (although it was not necessary in the circumstances to come to a firm view on the merits) and the policy of the court not to allow unlawful administrative decisions to stand in the interest of upholding the rule of law, these factors were outweighed by the consideration that the judicial review proceedings would serve no useful or practical purpose in the light of the pending non-refoulement claims under the USM and that it would be detrimental to good administration (paragraph 73). 

41.  I agree that the same rationale should apply in the present case.  As mentioned, the applicant has an outstanding claim under the USM.  There is thus no utility to the present proceedings and leave should not be granted.

42.  I further agree that there is no question of general public importance in this case.  The points taken in the Form 86 are clearly case-specific.

Conclusion

43.  For the reasons set out above, given (i) the very substantial undue delay and the lack of good reasons for the same; (ii) that these proceedings would serve no useful or practical purpose in view of the applicant’s non-refoulement claim on other applicable grounds pending under the USM; (iii) the present case involves no question of general public importance; and (iv) allowing this application to proceed would be detrimental to good administration, I would dismiss the applicant’s application: (a) for an extension of time to make the Application under Order 53, rule 4(1) of the Rules of the High Court; and (b) for leave to apply for judicial review.

44.  As the applicant has failed in this application, costs should follow the event.  I make an order that the costs of the application be paid by the applicant to the Director, such costs are to be taxed if not agreed.

45.  The above order as to costs is nisi and shall become absolute in the absence of any application within 14 days to vary the same.

46.  I further order that the applicant’s own costs be taxed in accordance with the Legal Aid Regulations.