SANDEEP v. BETTY KWAN (CHAIRLADY, TORTURE CLAIMS APPEAL BOARD)

HCAL 242/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 242 of 2015

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REASONS FOR JUDGMENT

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1.  The Applicant filed a non-refoulement claim under the Unified Screening Mechanism (USM) on 3 June 2014. His basis is that he will be harmed or killed if he is returned to India as he refused to join the Akali Dal Party (ADP) and sell drugs.

2.  The application was refused by both the Director of Immigration (Director) on 14 October 2014 and by the Adjudicator on 17 April 2015 (the Adjudicator’s decision). 

3.  On 7 December 2015 he applied for leave to judicially review the decision by the Adjudicator and an order for an extension of time under Order 53, rule 4(1) of the Rules of the High Court.

4.  The Applicant requested an oral hearing.  The hearing was listed yesterday and despite the court waiting for the Applicant to arrive long after the time listed and the Applicant’s name being called several times during that period there was no response.  He was absent from the hearing. 

5.  In any event, I have considered the application.  I have perused the documents in support of the application including inter-alia the above two decisions, the relief sought and the grounds relied on by the Applicant. Having considered the merits of the application, the application for an extension of time and leave for judicial review are refused. 

Facts

6.  The applicant's case was that he was a supporter of the Congress Party (CP) since 2012.  The main opposition political party was the ADP.  KS was the president of the ADP at the material time and was involved in illegal activities such as selling drugs and framing up cases against his rivals/opponents. KS had never been arrested by the police because of his close connection with the police.

7.  The applicant said that KS wanted him to join the ADP so that the applicant could sell drugs for him.  Upon the applicant's refusal KS sent people looking to kill him.  He had been attacked by a group of 4 to 5 unknown people wielding wooden sticks in the dark of the night but was unable to see the faces of his attackers.  The applicant went to the government hospital to seek treatment and obtain a medical certificate relating to his injuries.  However whilst there his friend accompanying him overheard people saying that they were looking for the applicant to kill him so he left the hospital. 

8.  He believed that KS was behind the attack. The police went to the Applicant's home about a month later and told his mother that someone had implied that the Applicant was involved in drug matters.  As the Applicant was concerned for his own safety he went into hiding for several months and as he believed that KS had framed a case against him and sooner or later would locate him.  He therefore came to Hong Kong for protection. The Applicant’s case is that he will be at risk if refouled because KS would kill him.

Findings made by the Adjudicator

9.  The Adjudicator gave reasons why she found the Applicant’s account not to be plausible or reliable, however she went on to say that even if the Applicant is believed the real course or effective course of the ill treatment was because KS wanted him to deal in drugs.  She found there was insufficient evidence to show that (a) the government and/or state and/or other authorities in India have acquiesced in the alleged ill-treatment of the applicant, (b) the applicant had suffered physical and/or mental suffering of the requisite severity and if refouled there was nothing to indicate before her that the Applicant will not be afforded the requisite level of protection from the government of India. 

10.  She found that none of the elements in the definition of torture in section 37U of the Immigration Ordinance had been satisfied.  The applicant had not shown there are substantial grounds for believing that if refouled he would be subjected to a real risk of prohibited treatment namely cruel, inhumane or degrading treatment or punishment. She further found that the applicant had failed to show that he had a well-founded fear of being persecuted for convention reason.

Application for extension of time

11.  The present application was not made within three months of the Adjudicator’s decision.  The application was filed 8 months after the date of the decision and almost 5 months after the upper limit of the 3 months’ period provided in Order 53, rule 4.

12.  The Applicant has accepted there has been a delay in making the application hence applied for an extension of time. 

13.  Following the Adjudicator’s decision the Applicant made an application for Legal Aid in or about early May 2015 for challenging the decision.  Legal aid was approved on 3 July 2015.  M.C.A. Lai & Co solicitors were assigned to the Applicant.  The explanation for the delay is seen in the affirmation at paragraphs 16-25.  The explanation given for the delay is that prior to the application the Applicant had made attempts to obtain documents from India in support of his non-refoulement claim but despite his efforts they were unsuccessful.  It was only on 11 November 2015 that he instructed his solicitors to prepare his present application based on the existing information.  In the circumstances the application was made on 7 December 2015. 

14.  I have taken into account the principles governing the application for extension of time as was examined in AW v Director of Immigration [2016] 2 HKC 293 and considered the following factors of the length of the delay, the explanation of delay, the merits of the substantive application, prejudice, questions of public importance and have borne in mind that these factors are not exhaustive. 

15.  The solicitors firm had been assigned just within the 3 months’ period. The solicitors must have been aware of the urgency of the application at that time. The solicitors requested the Applicant to obtain documents from India in support of his non-refoulement claim. 

16.  By early September 2015 the solicitors had received from the Director of Immigration all the documents related to the Applicant’s torture claim and torture petitions application.  As can be seen from the Applicant’s affirmation it was with those documents provided that was eventually relied upon in support of the Form 86 and affirmation which was filed on the Applicant’s behalf by the solicitors.  In the circumstances, the Applicant could have applied for judicial review in September 2015 instead he waited until November when the Applicant instructed his solicitors to make the present application on the basis of those documents provided in September.  This application could have been made then or shortly thereafter.

17.  As regards the question of substantive merits, for the reasons below, there is lack of substantive merits in the application.  No good explanation has been given for the delay.  As a result I see no cogent reason to extend time for the application for leave to apply for judicial review.  

Merits of application

18.  I turn very briefly to deal with the merits of the application.  The grounds for leave are set out in paragraphs 26-55 of the affirmation. 

19.  In respect to paragraph 26, the Adjudicator did fully consider the health of the Applicant in paragraphs 7 to 13 of the decision.  The past history showed that the previous hearing of his appeal was adjourned on the application of the Applicant on the ground of illness despite no medical certificates in support of his illness on the hearing day.  The medical certificate eventually submitted did not pertain to the hearing day.

20.  At the appeal hearing the Applicant again asked for a further adjournment as he was feeling dizzy.  A medical certificate produced allegedly in support of his illness showed that he had seen a doctor for a headache a week before.  No medical certificate was produced in support of his medical condition for that day of the adjourned hearing of appeal.  The Adjudicator had carefully observed his actions, he did not display any signs he was suffering from dizziness.  She advised him that he may apply for breaks in the hearing if he so required.  On careful analysis of the Applicant’s well-being she concluded fairly that she could continue with the hearing. 

21.  There was no basis to say that the Adjudicator failed to carry out sufficient enquiry into the matter and that she failed to give sufficient weight to the application of the extended concept of state acquiescence.  It is clear that the Adjudicator did take these into consideration.  The adjudicator carefully considered the Applicant’s case.

22.  The Adjudicator had properly examined the Applicant’s case.  The Applicant has not shown that he has a reasonably arguable claim which enjoys a realistic prospect of success. 

23.  Leave for judicial review is refused.