Case Detail

HCAL 225/2015

[2018] HKCFI 2087

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 225 OF 2015

___________________

BETWEEN
	BALRAJ SINGH	Applicant
	and
	TORTURE CLAIMS APPEAL BOARD	Respondent
	DIRECTOR OF IMMIGRATION	Interested Party

___________________

Before: Hon Yau J in Court

Date of Hearing: 31 May 2018

Date of Judgment: 12 September 2018

_______________

J U D G M E N T

_______________

1. This is an application for judicial review against the decision of the Torture Claims Appeal Board (“the Board”) made on 20 January 2015 dismissing the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 2 September 2014 which rejected the non‑refoulement claim of the Applicant.

BACKGROUND

2. The applicant is an Indian national who was born in 1968 in India. He claimed in his non-refoulement claim that he was a supporter of the Indian National Congress (“INC”), a political party in India. He started to work for INC in 2012 as a promotion worker and was given a monthly salary of 5000 to 6000 rupees. He soon became renowned as an outstanding worker who helped enormously in the propaganda of the party.

3. In early 2013, the Sarpanch (elected village head) of his village by the name of Rajinder-Kumar Papu (“Papu”) demanded the Applicant to leave the INC to work for him and his political party, the Shiromani Akali Dal Party (“SAD”). Papu threatened to harm him and his family and even to kill him if he refused. Papu was rich and powerful and was friendly with a member of the Legislative Assembly.

4. The Applicant in the company of his father made a report to the police. Although a record was formally made in a register the police did not take any action. The Applicant claimed that the police had informed Papu about his complaint.

5. The Applicant did not accede to the demand of Papu. On 2 February 2013 the applicant and his father were attacked by Papu and his henchman and Papu even pointed a pistol at the head of the Applicant. The Applicant and his father suffered serious injuries and his father died the following day as a result. He made a report to the police but his complaint was not registered because the police was afraid of Papu.

6. He paid 500 rupees to the police and a First Information Report in relation to his father’s death was compiled, but no documentation regarding this report was given to the Applicant. No action was, however, taken by the police.

7. The Applicant sought help from a member of the INC named Sunil Dutti (“Dutti”) who was a Member of Parliament or Member of Legislative Assembly through a peon of Dutti, but was later informed by the peon that Dutti was unable to help as he was afraid he would be harmed by Papu if he intervened.

8. Whenever the Applicant encountered Papu and his fellow people, he would be threatened by them that they would kill him like killing his father if he did not join the SAD. Owing to his experience with the police he did not report the threat to the police.

9. After the mother of the Applicant died in March 2013 he went into hiding in a Sikh Temple in the state of Maharashtra. Nothing untoward occurred to him there. In May 2013 he was told by a friend that Papu had found out where he was hiding.

10. The Applicant then went to live with his wife, children and parents-in-law in Pakhar Pura located at a distance of about 2 km from his home village. To support his living, he again worked as a promotion worker for the INC which was in need of helping hands for the election of Sarpanch to be held in July 2013.

11. One night before the election the Applicant was abducted by Papu and his men at gun point when he was putting up election posters in Pakhar Pura. He was severely beaten. He suffered serious injuries and was hospitalised for 4 days. No report was made to the police because he thought that it was useless to do so.

12. The Applicant took refuge in the Golden Temple in Amritsar where he stayed from July 2013 to April 2014. He learnt from his wife that the brother of the wife had overheard that Papu had come to know the whereabouts of him.

13. The Applicant then went to New Delhi and flew to Hong Kong when he felt that it was not safe for him to stay in India.

14. He arrived in Hong Kong on 4 April 2014 and made a non-refoulement claim on the same day. His claim was rejected by the Director on 2 September 2014 under the Unified Screening Mechanism (“USM”). He appealed to the Board on 12 September 2014 and his appeal was dismissed on 20 January 2015.

GROUNDS OF REVIEW

15. Leave has been granted for the applicant to argue the following grounds:

(a) The Board erred in taking the view that if Papu had not been determined to recruit the Applicant he would not have caused the attacks on the Applicant;
(b) The Board failed to conduct any or sufficient enquiries into the conditions in India;
(c) The Board inappropriately sat back putting the Applicant to strict proof;
(d) The Board wrongly and unfairly rejected the evidence of the Applicant;
(e) The Board erred in in law on the meaning of torture; and
(f) The Board had a flawed assessment of the persecution risk of the Applicant.

LEGAL PRINCIPLES OF JUDICIAL REVIEW

16. As rightly pointed out by the Applicant, the role of the court in a judicial review is summarised by McWalters J (as the JA then was) in AM v Director of Immigration [2014] 1 HKC 416:

“31. Of course, on a judicial review the role of the High Court is not to determine the merits of the applicant’s failed Convention (United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment) claim but rather to ensure that there has been no deficiency in the process that the applicant has undergone which has resulted in his claim being refused (T K v Jenkins & Anor [2013] 1 HKC 526 at paragraph 40):
‘… the court does not sit on appeal from the adjudicator’s decision. It only plays a supervisory role in the judicial review.’
32. How the Court performs this supervisory role was explained at page 204H of the Prabakar (Secretary for Securityv Prabakar (2004) 7 HKCFAR 187) judgment when the Court of Final Appeal said of the Secretary for Security’s decision to deport after rejecting a Convention claim:
‘… the courts will on judicial review subject the Secretary’s determination to rigorous examination and anxious scrutiny to ensure that the required high standards of fairness have been met.’
I have discussed earlier in this judgment what the Court of Final Appeal meant by ‘high standards of fairness’.
33. The issues that will usually arise in applying judicial review principles to the processing of Convention claim were explained by Lam J in T K v Jenkins at paragraph 87:
‘In the context of a judicial review of a decision of an adjudicator, the crucial issues are: whether the adjudicator committed any error of law in his interpretation of the CAT; whether the procedures adopted at the hearing of the petition satisfied the high standard of fairness; whether the substantive decision satisfied the enhanced Wednesbury test.’
34. The ‘enhanced’ Wednesbury test is simply an application of the Wednesbury test by means of a rigorous examination and anxious scrutiny of the decision-making process and the reasons by which the decision-maker reached his decision.”

17. The relevant legal principles are succinctly set out in the case of SS v Director of Immigration and Torture Claims Appeal Board[1]:

“27. It is trite law that judicial review is not a further appeal. The court, in the exercise of its supervisory jurisdiction in the context of judicial review is to examine whether the Director and/or the Appeal Board in dismissing the applicant’s claim (a) made any error of law; and (b) handled the claim without compliance with the high standard of fairness as required by the law (as explained by the Court of Final Appeal in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187). It is also important to bear in mind that while the burden of proof lies on the torture claimant applicant to prove that there are substantial grounds for believing that he would be in danger of being subjected to torture, it is subjected to the requirement of ‘high standards of fairness’ that both the Director and the Appeal Board must observe. What the ‘high standards of fairness’ demand would depend on the circumstances of each individual case but ultimately it boils down to common sense and fairness (see TK v Jenkins & Anor [2013] 1 HKC 526). The determination of a torture claim is a ‘joint endeavour’, the claimant cannot sit back and require the Director to disprove his claim (see CH v Director of Immigration [2011] 3 HKLRD 101.”

Ground 1 - Reason of Attack on The Applicant

18. In Ground 1 of the application, the Applicant submits that the Board wrongly interpreted the reason of Papu’s attack on the Applicant as being solely the determination of Papu to recruit the Applicant. The Applicant contends that this has resulted in the finding of the Board that he had failed to produce evidence to show that he was so outstanding that Papu was determined to recruit him. He further points out that the attack could have been due to his loyalty to INC.

19. The submission of the Applicant in this regard is misconceived. On a careful reading of the decision of the Board, it can be seen that the Board had never held such a view regarding the reason of Papu’s attack on the Applicant. The Board only expressed disbelief of the Application’s claim that he had become renowned for being an outstanding worker and Papu was desperate to recruit him when, despite being given plenty of chances to give details about his job, all he could say was that his work had been to put up posters and ask people to vote for INC, a job which required no special skill or training. The Board found it difficult to see how the Applicant could have become renowned as an outstanding worker for doing such simple work and why Papu should be so determined to recruit the Applicant who was only a basic grassroots worker.

20. It may be argued, as the Applicant does in this application, that the recruitment of and attack on the Applicant could also be due to his loyalty to INC. It is, however, common knowledge that the INC is a long-established political party in India with a large membership. And it must follow, as the night the day, that a large number of workers were working for the party in the same way as the Applicant. The home village of the Applicant would be no exception. If Papu should bother himself even with a modest worker of a lowly level in the INC like the Applicant he would be a very busy man.

21. The question about the recruitment and attack of the Applicant constituted part of the facts finding of the Board which the Court will come to again later. Suffice to say at this stage that the Court finds no flaw in the reasoning of the Board in this regard.

22. Ground 1 fails.

Ground 2 – Enquiries into Country Conditions of India

23. The Applicant complains that the Board failed to make sufficient enquiries into the country conditions of India and did not even have regard to the materials considered by the Director, thus breaching the high standard of fairness required. This complaint is in connection with the failure of the police to take action regarding the reports of the Applicant that he and his father had been attacked and injured by Papu and his henchmen causing the death of the father and that he had been threatened by them.

24. The Applicant cites in support of its contention the judgment of Prabakar at paragraph 55:

“…..an understanding of country conditions at the time of the alleged torture in the past as well as at the present time is usually relevant to the assessment of the claim. This is recognised by the policy. UNHCR may be able to supply relevant information. And published materials are available from various sources including well‑respected non-governmental organizations. The Secretary should obtain any such information and materials and take them into account.”

25. The Applicant points out that there is objective conditions information of India corroborating the contention of the Applicant that the police in India would not offer protection to him and that the police had connection or collaboration with rich people or those in power. The India 2013 Human Rights Report issued by the United States Department of State (“USCOI Report”) and the Country of Origin Information Report of India issued by the United Kingdom Home Office (“UKCOI Report”) are cited as sources of such information. The Applicant complains that the Board failed to have regard to such information when it considered whether there was state acquiescence and wrongly concluded that the police had taken action regarding the reports made by the Applicant.

26. In this regard the Board pointed out that when the Applicant made the first report, it was duly registered by the police and when he made a report to the Jantipur Police Station after the death of his father a First Information Report (‘FIR”) was compiled. The Applicant submits that in respect of the first report a record was only made in a register upon the insistence of his father. There was indeed evidence from the Applicant that money was paid to the police before the FIR was made out in his second report. The Applicant further points out that the police had not made enquiries of him and that even if a record had been made in a register and an FIR had been prepared it did not mean that the police had exercised due diligence to investigate into and prosecute the crime of Papu.

27. In this connection the Code of Criminal Procedure of India is relevant. According to the Code if a police officer refuses to register a complaint of a cognisable offence in a FIR the aggrieved person can make a written complaint to the Superintendent of Police or the Commissioner of Police, copying it to the Chief Justice of the High Court of the relevant State. The Superintendent or Commissioner of Police on being satisfied that a cognisable offence has been committed may investigate the case or cause it to be investigated. A cognisable offence basically means an arrestable offence.

28. According to the Indian case of Lalita Kumari v Government of Uttar Pradesh & Others (2008) 14 SCC 337 it is mandatory for the police to register an FIR. Under the same Code the aggrieved person may also make an application to a magistrate who is empowered to order the police to carry out investigation. There are therefore means for the Applicant to enforce his rights which the Applicant failed to make use of. As such the Court is of the view that the Board cannot be criticised for concluding that there was no evidence of state acquiescence or lack of due diligence on the part of the Indian authorities.

29. The Appellant gave evidence that he and his father had been brutally attacked by Papu and his henchman after he had made the first report and he believed that the police had informed Papu about it. As rightly pointed out by the Director it was inevitable that Papu would come to know about Appellant’s complaint when the police carried out investigation, only that the Appellant chose not to make enquiries with the police as to what investigation, if any, had been made and its progress.

30. The Appellant submits that Papu was not afraid of being investigated or prosecuted for his crimes. According to the Appellant he only sought assistance from a member of the INC named Sunil Dutti (“Dutti”) who was a Member of Parliament or Member of Legislative Assembly through a peon of Dutti, but was later informed by the peon that Dutti was unable to help as he was afraid he would be harmed by Papu if he intervened. Apparently the Applicant did not have a chance to see Dutti himself and only relied on the peon. He did not even seem to know if the peon had passed on his request for assistance to Dutti.

31. The evidence of the Applicant was that he worked for the party. There was no reason why he should not seek help from the party itself. INC, as pointed out above, is a long-established political party in India with a large membership and quite a number of members being members of the parliament or members of the legislative assembly. Together with the Bharatiya Janata Party (“BJP”), which is the current ruling party in India, they are the largest political parties in India. Although SAD is allied with BJP it is impossible that INC would not take up the matter when one of its workers was being harassed or even persecuted by a member of the SAD for being a good worker for and loyal to INC. It would be a golden opportunity for INC to attack its rival parties. The Applicant had simply failed to take steps, even those which were obvious and direct, to safeguard his own interests. This is also relevant to the other grounds of application of the Applicant which the Court will come to when the Court deals with them.

32. There is clearly no evidence of acquiescence of state but failure on the part of the Appellant to explore and make use of the available avenues to protect and enforce his rights. The Board cannot therefore being criticised for failing to make sufficient enquiries into the country conditions of India.

33. Ground 2 fails.

Ground 3 – The Board Putting the Applicant to Strict Proof

34. The Applicant complains that the Board simply sat back and put the Applicant to strict proof of his claim without seeking clarification or elaboration where it is needed in fairness. The complaint relates to the Board’s finding that the Applicant failed to produce evidence to show that Papu stood for re-election to be Sarpanch and that a Vikram Singh was a member of the local legislative assembly and was, as stated in his Non-refoulement Claim Form (“NCF”), subject to the bidding of Papu.

35. In Prabakar it was observed:

“53. It is for the Secretary (the Secretary for Security) to comply with the high standards of fairness when considering individual cases. The following observations may, however, be of assistance. First, the difficulties of proof faced by persons in this situation should be appreciated. The person concerned may have fled from the country concerned with few belongings and documents and his level of education may be relatively low.....
54. Secondly, it would not be appropriate for the Secretary to adopt an attitude of sitting back and putting the person concerned to strict proof of his claim. It may be appropriate for the Secretary to draw attention to matters that obviously require clarification or elaboration so that they can be addressed by the person concerned...” (Words in bracket added)

36. As, however, rightly pointed out by the Director the screening process was one of “joint endeavour” and the Applicant still has to provide sufficient objective proof of specific circumstances. This is in line with what was said in TK:

“25. High standards of fairness certainly do not entitle the torture claimant, having stated a claim, “to simply sit back and require the Director to disprove it”. The exercise of determining whether a claim made under article 3(1) of the CAT is valid must be one of “joint endeavour”. CH v Director of Immigration [2011] 3 HKLRD 101, para 47.”

37. It was further said in TK:

“24. …..But again everything depends on the facts. There may be no duty to keep probing or inquiring where the objective circumstances made it reasonably clear that the applicant and those representing him are aware of what he has to show and has already produced or mentioned all that he wants to produce or mention.”

38. This is in fact the situation in the present case. The Applicant was represented by a lawyer provided by the Duty Lawyer Scheme when he filled in the NCF and in the 3 interviews with the Immigration Department during which time matters relating to Papu running for re-election to be Sarpanch and his association with Vikram Singh were already raised. Such matters being part of the motive for Papu to threaten and attack the Applicant were obviously regarded by the Applicant as relevant and material to his application. There was, however, no proof provided to support these claims, nor was there any indication by the Applicant that he had encountered difficulties in obtaining the proof and required assistance of the Director or the Board. It was in such a scenario that the Board came to its finding and this was the type of situation which required no probing and enquiries as envisaged in TK.

39. The Applicant further asserts that the Board made a mistake that he had reversed the role of Vikram Singh in the hearing before the Board in saying that Papu was doing the bidding of Vikram Singh.[2] He emphasises that he had never stated in the NCF or else where the role of Papu and Vikram Singh or the latter doing the bidding of the former.

40. The Board indeed made such a mistake. The Applicant, however, only raised for the first time that Papu was doing the bidding of Vikram Singh in the appeal hearing before the Board and no proof was produced to support such claim. More importantly, this was not the main reason the Board rejected the application of the Applicant. The conclusion of the Board was based on its finding that the material particulars of the claim of the Applicant are not credible and reliable.

41. As pointed out in the analysis under Ground 1 above the Court finds no flaw in the finding of Board. The Court is of the view that the claim of the Applicant does not make sense at all and is illogical. This is so no matter it is judged in the contexts of Hong Kong, India or elsewhere in the world. The mistake of the Board has no impact at all to the rejection of the appeal of the Applicant to the Board.

42. Ground 3 fails.

Ground 4 – Failure to Take All Relevant Matters into Account

43. The Applicant criticises the Board for failing to take all relevant evidence into account when it rejected the evidence of the Applicant because of the conflicts in evidence in relatively trivial matters[3]:

(a) the Applicant being unaware of when and how Modi being elected the prime minister of India;
(b) the Applicant in the NCF wrongly giving the name of the member of parliament or member of legislative assembly from whom he sought help as Maninder Singh when it should have been Sunil Dutti;
(c) the Applicant being inconsistent in claiming himself a member of INC in a letter to the Director and a mere supporter of the party in the interviews with the Immigration Department.

44. The Applicant explains that he was a mere grassroots worker and was naturally not familiar with the high-level national politics. Furthermore, he had come to Hong Kong and was not aware of the situation in India when Modi was elected prime minister. This argument clearly does not hold water. The name of the leader of a country is by no means high level national politics of the country, otherwise we would all be familiar with the high level politics of a lot of the big countries in the world. If the Applicant was telling the truth about his involvement with the INC and his being such a good and loyal worker for the party that Papu would have employed even illegal means to recruit him for himself and the SAD or to stop him working for the INC, it is impossible that he would not have paid attention to political development in his home country, for the simple reason that if a member of the INC had been elected prime minister he might be able to return to the country with pride and without fear of Papu. This strengthens the argument that the story of the Applicant cannot be true as set out under Ground 1.

45. As regards the mistake about the names of Maninder Singh and Sunil Dutti the Application submits that he made the correction about the mistake of his own initiative. This may well be the case, but being a member or a mere supporter of INC cannot be something the Application could be mistaken about. One must bear in mind that the Board did not come to disbelieve the Application in his claim because of one or two flaws in his evidence, but was a conclusion after analysing and considering his evidence as a whole.

46. Ground 4 fails.

Ground 5 – Risk of Torture

47. The risk of torture under Article 1 of the Convention Against Torture (“CAT”) is one of the applicable grounds of the non-refoulement claim of the Applicant. The meaning of torture in CAT is adopted in Hong Kong in section 37U(1) of the Immigration Ordinance, Cap 115 (“the Ordinance”). The Applicant submits that the Board erred in law on the assessment of the risk of torture under the Ordinance in failing to appreciate that the requirement of “official capacity” under the section can be satisfied where the person instigating the purported torture act is either acting in an official capacity or purported to act in such a capacity.

48. In its decision the Board referred to the section when it cited the definition of torture in the CAT[4]:

“47. The definition of torture in Article 1 of the Convention Against Torture (“CAT”) has been adopted at section 37U of the Immigration Ordinance. It provides:
‘torture means an act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person-
(a) For such purpose as-
(i) obtaining from that person or a third person information or a confession;
(ii) punishing that person for an act which that person or a third person has committed or is suspected of having committed;
(iii) intimidating or coercing that person or a third person; or
for any reason based on incrimination of any kind, when such pain or suffering is inflicted by, or at the instigation of, or with the consent or acquiescence of, a public official or another person acting in an official capacity, excluding pain or suffering arising only from, inherent in or incidental to lawful sanctions.”

49. The Board then explained the definition of torture with reference to the publication “The United Nations Convention against Torture, a handbook on the Convention Against Torture or other Cruel Inhuman or Degrading Treatment or Punishment”. After analysing the evidence of the Applicant the Board rejected his claim in this regard on the ground that he failed to satisfy the requirements of torture as defined in the Ordinance.

50. The merits or otherwise of the criticism of the Applicant, as rightly pointed out by the Director, are entirely academic as the Board had already found that the story of the Applicant was totally not credible and reliable. This view is shared by the Court as stated by the Court in the analysis above.

51. The Board also considered the risk of torture and cruel, inhuman and degrading treatment or punishment (“CIDTP”) under article 3 of the Hong Kong Bill of Rights (“BOR3”). In explaining the requirements for protection against the ill-treatments under BOR3 it cited the case of Pretty v United Kingdom[5] which held that such ill-treatments had to attain a minimum level of severity, involving actual bodily injury or intense physical or mental suffering or the ill-treatments humiliated or debased an individual, showing a lack of respect for, or diminishing his human dignity, or aroused feelings of fear, anguish or inferiority capable of breaking an individual’s moral and physical resistance.

52. The Board went on to conclude that there was not sufficient evidence to support a claim under BOR3. This is an inevitable result following the finding of the Board in relation to the credibility and reliability of the Applicant.

53. The Court does not find any flaw in the approach and conclusion of the Board in the issue of the risk of torture. Ground 5 fails.

Ground 6 – Risk of Persecution under the Refugee Convention

54. The law in relation to the issue under this ground was correctly stated by the Board and the Director. As pointed out by the Board, harm or ill-treatment would not be regarded as persecution under the Convention Relating to Status of Refugees unless a core human right was or would be violated.[6] Under Article 1A(2) of this convention, which is also known as the Refugee Convention (“RC”), violation of such core human rights refers to fears of persecution for reasons of race, religion, nationality, membership of a particular social group and political opinion.

55. In the present case, as rightly pointed out by the Director, the Applicant, in establishing persecution risk under Article 33 of the RC, has to show[7]:

“a. a well-founded fear of being persecuted;
b. that such persecution was by reason of his political opinion;
c. that he was unable or unwilling to avail himself of the protection of the India.”

56. The Applicant submits that the Board erred in its finding:

“it is highly unlikely that Papu was motivated by a political opinion, or motivated by a desire to stifle the Appellant’s political beliefs. The evidence indicates that the Appellant was not knowledgeable about politics in India, and his work for the INC was confined to menial grass level tasks such as putting up banners and posters.”[8]

57. The Applicant points out even if he was not knowledgeable in the politics in India and was involved in menial grass level tasks it does not follow that the element of political opinion is not established. He emphasises that the motives of Papu in demanding him to leave INC to work for him and the SAD could be mixed and it was not necessary to show that they were purely political. He had manifested his political belief by his loyalty to and work for INC and Papu had attributed his political belief as the reason for his repeated refusal to join the SAD.

58. The Board did not, in fact, find that Papu had unlikely been motivated by political opinion or a desire to stifle the Applicant’s political beliefs in the way he treated the Applicant merely because the Applicant was not knowledgeable about politics in India, and his work for the INC was confined to menial grass level tasks. The Board was only using this argument to support or strengthen its finding that the story of the Applicant was totally incredible and unreliable. It is for this reason that the Board came to the conclusion that the Applicant failed to bring himself within the definition of refugee under the RC.

59. As the Court has said the finding of facts of the Board was based on unassailable grounds and cannot be faulted. Ground 6 fails.

CONCLUSION

60. For these reasons the application for judicial review against the Board’s decision is dismissed for devoid of merits.

61. The Applicant’s own costs are to be taxed in accordance with the Legal Aid Regulations.

	(Joseph Yau)
	Judge of the Court of First Instance
	High Court

Ms Bianca Yu of Counsel, instructed by M.C.A, Lai Solicitors LLP (assigned by DLA), for the Applicant

Mr Hew Yang Wahn of Counsel, instructed by Secretary for Justice, for the Interested Party

The Respondent was not represented and did not appear

[1] HCAL 69/2015

[2] Paragraph 32, Decision of the Board

[3] Paragraph 44, Decision of the Board

[4] Paragraph 47, Decision of the Board

[5] (2002) 35 EHRR 1

[6] Paragraph 26, Decision of the Board.

[7] Paragraph 77, Director’s written submission

[8] Paragraph 74, Decision of the Board.

HCAL 225/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 225 OF 2015
_____________________

BETWEEN
	BALRAJ SINGH	Applicant
	and
	TORTURE CLAIMS APPEAL BOARD	Respondent
	DIRECTOR OF IMMIGRATION	Interested Party

_____________________

Before: Hon Yau J in Court

Date of Hearing: 1 March 2017

Date of Judgment: 12 April 2017

______________

J U D G M E N T

______________

1. The applicant is an Indian national who was born in 1968 in India. He came to Hong Kong on 4 April 2014 and made a non-refoulement claim on the same day. His claim was rejected by the Director of Immigration (“the Director”) on 2 September 2014 after the Unified Screening Mechanism (“USM”). He appealed to the Torture Claims Appeal Board (“TCAB”) on 9 September 2014 and his appeal was dismissed on 20 January 2015.

2. On 20 November 2015, the applicant, by Notice of Application (Form 86), made an application for leave to apply for judicial review of the decision of TCAB. As the application was brought out of time, the applicant also applied for an extension of time.

3. Leave was granted by the court on 10 August 2016 ex parte.

4. By a consent summons dated 7 September 2016, the Director was joined as an Interested Party. Leave was also granted to the Director to file an application by way of inter partes summons to set aside the leave to apply for judicial review granted, on the ground of delay on the part of the Applicant in making the application for the leave.

BACKGROUND

5. The Applicant claimed in his non-refoulement claim that he was a supporter of the Indian National Congress (‘INC”), a political party in India. He started to work for INC in 2012 and soon became an outstanding worker who helped enormously in the propaganda of the party.

6. In early 2013 the elected head of his village by the name of Rajinder-Kumar Papu (“Papu”) demanded the Applicant to leave the INC to work for him and his political party, the Shiromani Akali Dal Party (“SAD”). Papu threatened to harm him and his family and even to kill him if he refused. Papu was rich and powerful and was friendly with a member of the Legislative Assembly.

7. The Applicant did not accede to the demand. On 2 February 2013 the applicant and his father were attacked by Papu and his henchman and Papu even pointed a pistol at the head of the Applicant. The Applicant and his father suffered serious injuries and his father died the following day as a result. He made a report to the police but his complaint was not registered because the police was afraid of Papu. No action was taken by the police.

8. In July 2013 the Applicant was abducted by the men of Papu at gun point and was severely beaten. He suffered serious injuries and was hospitalised for 4 days. He did not report the incident to the police because he knew that it was useless to do so. The Applicant then went into hiding and fled to Hong Kong when he felt that he was in imminent danger.

DELAY

9. According to O53 r4(1) of the Rules of High Court an application for leave to apply for judicial review is to be made promptly and in any event within 3 months from the date the grounds for the application first arose unless the court considers that there is good reason for extending the period. Section 21K(6) of the High Court Ordinance Cap 4 empowers the court to refuse to grant leave for making an application for judicial review or any relief sought if it considers that there has been an undue delay in making the application.

10. The Application filed the Form 86 on 20 November 2015 which was 10 months after the dismissal of his claim by TCAB and 7 months beyond the time limit imposed by the statutes. The counsel representing the Applicant, Mr Newman Lam, points out that there are good reasons for an extension of time. The Applicant stated in his affirmations that he had made an application to the Director of Legal Aid (“DLA”) for legal aid to challenge the decision of the TCAB and legal aid was offered in July 2015. The legal aid certificate was issued on 14 August 2015.

11. At the request of the solicitors representing the Applicant the Director released the Applicant on recognizance on 14 July 2015. The solicitors had a conference with the Applicant on 17 July 2015, asking the Applicant to provide more documents and information which the Applicant did on 22 September 2015. The Form 86 was then prepared and filed.

12. A further conference took place between the Applicant and his solicitors on about 21 October 2015 to finalise the instructions of the Applicant.

13. Mr Jesse Yu, counsel for the Director, submits that no good reasons have been given by the Applicant for the delay.

REASONS FOR DELAY UNTENABLE

14. The leading authority on the question of delay in application for leave to apply for judicial review is AW v Director of Immigration, CACV 63/2015. It was said by the Court of Appeal in this case (at para 26):

“Whenever there is 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’. The court therefore retains a discretion to refuse to grant leave for the making of the application or the relief sought on the substantive application on the grounds of undue delay, if it considers that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration.”

15. In X v Torture Claims Appeal Board and Director of Immigration HCAL 143/2013, Zervos J said:

“12. In consequence, a claimant seeking judicial review must file a claim form promptly, in any event not later than three months after the grounds to make the claim first arose. A claim form filed after the time limit must be accompanied by an application to extend the time limit for the filing of it. The court may refuse permission to grant leave unless it considers that there is ‘good reason’ for extending the period, and even if it considers that there is, it may still refuse to grant leave if it believes that the granting of the relief sought would be likely to cause hardship or prejudice or would be detrimental to good administration. See Re Ho Mei Ling [2011] 6 HKC 1, at paras 79 to 111 per Lam J (as he then was); Fung Elivira Binag v The Secretaryfor Home Affairs, HCAL 139/2013, unreported, 10 March 2014, at paras 11 to 13 per Au J. 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. The difficulty that confronts the courts in cases like this is that the delay involved can be substantial which would normally be a bar to dealing with the application, but the reason given for the delay is because of the time taken to process the application for legal assistance which is considered necessary in order for the applicant to complete and file a claim form. In deciding whether there is good reason for the delay, it may be necessary for the Legal Aid Department to file an affidavit from the relevant case officer setting out a chronology and an explanation of the time taken in processing the application and the reason for any delay or period of inaction that has taken place. This will obviously be considered together with all other information or material submitted by the applicant. 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.”

16. In the case of AW, the Court of Appeal stated that in claims for humanitarian protection the principles and approach stated in Re Thomas Lai [2014] 6 HKC 1 relating to application for extension of time for judicial review are applicable. The principles are summarised as follows (at para 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, 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.”

17. The delay in the present case is a substantial one. As pointed out above it is 10 months after the dismissal of the claim of the Applicant by TCAB and 7 months beyond the time limit for making the application. One of the reasons for the delay, Mr Lam submits, is the time taken for the Applicant to obtain legal aid.

18. As rightly pointed out by the Director there are ample authorities, such as Re Thomas Lai [2014] 6 HKC 1 and Nisa Azizan and Hameed Abdul v Director of Immigration & Another HCAL 203/2015, saying that there is no proposition that difficulty or time taken in obtaining legal aid is a good reason to justify an extension time, albeit it is one of the factors to be considered.

19. In the case of X v Torture Claims Appeal Board and Director of Immigration referred to above it was said that in deciding whether there was good reason for the delay, it might be necessary for the Legal Aid Department to file an affidavit from the relevant case officer setting out a chronology and an explanation of the time taken in processing the application and the reason for any delay or period of inaction that had taken place. In the case of BI v Director of Immigration [2016] 2 HKLRD 520 the Court of Appeal endorsed the case of BH v Director of Immigration HCAL 105/2014 which expressed a similar view.

20. In the present case the Applicant only submitted his application for legal aid in May 2015 which was already about 1 month beyond the time limit for application for leave to apply for judicial review. The claim of the Applicant in his 3^rd affirmation that the duty lawyer had not informed him about his right to apply for legal aid and that he was not aware of such right is hard to believe. If he had pursued his case with due diligence he would not have taken such a long time to discover his right, even if the duty lawyer had really failed to inform him of such right. In Re Thomas Lai it was said that it was incumbent upon the applicant to demonstrate that he had exercised due diligence in the making and processing of his legal aid application.

21. The Applicant has only made a bare assertion about the time taken in the processing of his legal aid application, with no chronology and other details about the application, let aside verification in any form by any legal aid officer.

22. Subsequent to the granting of the legal aid, the solicitors asked the Applicants to provide documents on 17 July 2015 which the Applicant only did so on 22 September 2015. There are no details as what the documents were and why they were needed.

23. In the 3^rd affirmation of the Applicant it was said that from the granting of the legal aid certificate on 14 August 2015 to the filing of the application for leave to apply for judicial review on 20 November 2015, he had difficulty obtaining documents from India. The documents were said to include affidavits of witnesses and police statements.

24. According to Form 86 of the Applicant, in his first report to the police in India, the police did not register his complaint or make any enquiries regarding the verbal threats made by Papu and his men. In his second report to the police in India about the attack by Papu and his men which injured him and killed his father, the police only recorded his complaint in a First Information Report after he had paid them 500 Indian rupees. As no enquires had been made by the police no statements would have been taken from any witnesses. It is not known what police statements, if any, the Applicant was seeking to obtain.

25. Furthermore, no documents from India have been produced by the Applicant either in his affirmations or during the USM or TCAB hearing.

26. There is also a delay in the taking of instructions from the Applicant by his legal representatives to prepare for the application for leave to apply for judicial review. The first conference took place on 17 July 2015 while the next one took place on 21 October 2015. According to the submission of Mr Lam the latter conference was held with a view to finalising the instructions of the Applicant.

27. The solicitors and counsel of the Applicant should know as soon as they were assigned by the Legal Aid Department to represent the Applicant that the time to apply for leave to apply for judicial review of the decision of TCAB had already expired and they should act promptly. There is, however, no explanation why it took so long to finalise the instructions of the leave application and to file the Form 86.

28. All the above shows that the Applicant adopted a lax attitude in pursuing his application for leave to apply for judicial view. The attribution of the delay to the time taken to process his application for legal aid and the difficulty in obtaining documents from India is unfounded. The delay in making the legal aid application is also due to the Applicant’s own fault.

29. The delay in obtaining instructions from the Applicant and the filing of the Form 86, as seen from the submission of Mr Lam, seems to be largely due to the time taken by the Applicant in obtaining documents from India. As analysed above such an excuse is untenable.

DETRIMENT TO GOOD ADMINISTRATION

30. As pointed out above, it was held in the case of AW that the court retained a discretion to refuse to grant leave for the making of the application of judicial review on the ground of undue delay, if it considered that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration.

31. In the judgment of the Court of First Instance in AW it was said that the volume of cases under cruelty and torture claim (“CAT Claim”) was already very large and the time and resources spent on those cases was immense. It also stressed that it was to the interest of all parties that those cases should be disposed of promptly and efficiently and unnecessary or unmeritorious applications should not be allowed to dwell on causing additional pressure to the administration of the Immigration Department.

PREJUDICE

32. It is pointed out by the Director that the Applicant has not exhausted his alternative remedies. On 14 September 2016 the Immigration Department wrote to the Applicant inviting him to submit, within 14 days, any additional facts he considered relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection to the department for consideration and if new facts and events were submitted the department, where necessary, would arrange a further screening interview with the Applicant and would provide the Applicant with a further written decision of the Applicant’s non-refoulement claim, taking into account of the new facts and events.

33. The Applicant did not provide any new facts or events by the deadline. The department sent a further letter to the Applicant on 30 December 2016 informing him that he had been taken to have no additional facts or materials to provide and the department had taken the liberty to further consider his non-refoulement claim in the absence of further facts and materials, coming to the conclusion that he would not be subject to any risk of his absolute and non-derogable rights under the Hong Kong Bill of Rights being violated upon his return to India.

34. It was also stated in the letter that the Applicant might within 14 days from the date of the letter lodge a separate and further petition to the Non-refoulement Claims Petition Office. The Applicant has not pursued the remedy in this regard.

35. Mr Lam submits that the Applicant had not received the letters. Even if the Applicant had received the letters, it must be borne in mind that at that time the court had granted leave for the Applicant to apply for judicial review of the decision of TCAB and there was a strong likelihood that he would, as a result, consider that there was no need to pursue that remedy. After all, the solicitors and counsel assigned to him are for the purpose of the application for leave to apply for judicial review only and the Applicant would not have the benefits of their advice on the matters set out in the 2 letters of the Immigration Department.

MERITS OF SUBSTANTIVE APPLICATION

36. The Applicant raises a total of 6 grounds to challenge the decision of TCAB and Mr Yu has given its reply even though he is strictly speaking not representing the TCAB. The merits of the grounds raised are an important, though by no means the conclusive, factor to be considered. In view of the conclusion of the court in the present hearing which will become clear later, it is considered not appropriate to present a full analysis and discussion of the grounds and arguments at this stage. It suffices to say that the court finds the grounds to be reasonable arguable.

37. As stated in Re Thomas the determination of whether there is good reason to extend the time for making the application for leave to apply for judicial review is a multi-faceted exercise. In AW the Court of Appeal elaborated on the matter:

“The principles governing the exercise of discretion to extend time for judicial review are well established, and they are meant to be applied flexibly, always with regard to the particular circumstances of each case. As stated in Re Thomas, this is a multi-faceted exercise. No comprehensive definition of ‘good reason’ for the purpose of extending time can be given, and the weight to be given to any factor usually to be considered would vary depending on the particular circumstances.”

38. The court basically has to carry out a balancing exercise of the factors set out in AW. While there is a substantial delay in the filing of the application by the Applicant, the detrimental effect brought about outweighed by the other factors such as prejudice to the Applicant and merits of the substantive application. The court is satisfied that there is good reason to extend the time.

CONCLUSION

39. The application of the Director to set aside the ex parte leave given to the Applicant to apply for judicial review is dismissed.

COSTS

40. The court makes an order nisi that the Director pays the Applicant’s costs of this hearing.

	(Joseph Yau)
	Judge of the Court of First Instance
	High Court

Mr Newman Lam, Counsel instructed by Messrs M.C.A. Lai Solicitors LLP, for the Applicant

Mr Jesse Yu, Government Counsel of the Department of Justice, for the Interested Party

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