CHAUDHARY MUHAMMAD MOBEEN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL737/2017

[2018] HKCFI 995

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 737 of 2017

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

Following;

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

Leave to apply for judicial review be refused.  

Observations for the Applicant

Background

1.  The Applicant is a Pakistan national and a Sunni Muslim.  He is now aged 42 (DOB: 1 May 1976).

2.  The Applicant first came to Hong Kong in 2002 as a visitor.  He applied for refugee status with UNHCR in Hong Kong in 2005.  Yet, he did not proceed with that application.  He simply overstayed here.  Later, he was arrested and repatriated to Pakistan in 2005.

3.  In July 2008, the Applicant came to Hong Kong again to seek non-refoulement protection.  This time, he claimed he fell in love with a girl called Nasreen in Pakistan in 2006.  The girl was a Shia Muslim.  Her two brothers were Shahid Shah and Munir Shah.  The two brothers were associated with the ruling party Pakistan Muslim League (N).  The brothers were influential and had connection with the government and the police.  They disallowed the love affairs between Nasreen and the Applicant because of their religion difference.  They threatened to kill the Applicant.  The Applicant had been attacked on a number of occasions by the brothers and their hired men.  One of the brothers even once pointed a pistol at the Applicant and threatened to kill him.  In 2007, Nasreen’s family falsely reported to the police that the Applicant had abducted the girl.  They continued to make false allegations against the Applicant.  The Applicant moved to live in other places but his family were harassed by the police.  Finally, the Applicant felt that he had to flee for his life.  He left Pakistan on 30 May 2008. He finally came to Hong Kong again on 18 July 2008.  He made a torture claim, alleging Nasreen’s brothers threatened to kill him because of his love affairs with Nasreen and also because he was of the Sunni minority as against the Shia majority in Pakistan.

4.  The Applicant claimed that after he had left Pakistan his family was still harassed.  His father had been attacked and finally died of heart attack two years ago under pressure. The Applicant heard from a friend in Pakistan that Nasreen’s brothers had even bought guns to kill him.

5.  Normally, in the two-tier Unified Screening Mechanism, the Director of Immigration (“the Director”) and the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (“TCAB/NCPO” or simply “the Board”) would respectively consider an applicant’s claim on all the four applicable grounds: (i) risk of torture,[1] (ii) risk of persecution,[2] (iii) risk of torture or cruel, inhuman or degrading treatment or punishment (CIDTP risk or BOR3 risk)[3] and (iv) risk of violation of the right to life (BOR2 risk)[4].

6.  In the present case, the Applicant's torture claim had already been refused by the Director on 24 April 2012.  In the subsequent screening process, the Director refused the Applicant’s claim on the three remaining applicable grounds: (i) persecution risk, (ii) CIDTP risk (or BOR3 risk) and (iii) life risk (or BOR2 risk).  The Director’s decision was made on 17 May 2017.

7.  Nineteen days later, on 5 June 2017 the Applicant filed a Notice of Appeal to the Board.  It was beyond the 14-day limitation period prescribed by s. 37ZS(1) of the Immigration Ordinance, Cap 115.  The Board did not accept such late filing in the absence of any justification.  The Adjudicator made his decision on 28 September 2017.

8.  On 6 October 2017, the Applicant applied for leave for judicial review.

Chronology of events

9.     Things happened in this order: –

2002	The Applicant came to Hong Kong as a visitor.  He overstayed.
2005	The Applicant applied for refugee status with UNHCR.  He did not proceed with the application and was later repatriated to Pakistan.
2008-5-30	The Applicant left Pakistan.  He first went to China.
2008-7-18	The Applicant came to Hong Kong again, sneaking from China by boat.
2008-8-10	The Applicant lodged a torture claim.
2012-4-24	The Applicant’s torture claim was rejected by the Director.
2017-5-17	The Director refused the Applicant’s non-refoulement claim on these three applicable grounds: (i) persecution risk, (ii) CIDTP risk (or BOR3 risk) and (iii) life risk (or BOR2 risk).
2017-6-5	The Applicant filed a notice of appeal to the Board.
2017-9-28	The Board refused the Applicant’s late filing of appeal.
2017-10-6	The Applicant applied for leave for judicial review.

Respondent/Interested party

10.  In Form 86 (the notice of application for leave to apply for judicial review) dated 6 October 2017 [Folio 1], the Applicant did not name any proposed respondent.  Nor did he specify the subject matter in respect of which relief was sought.  He only stated that relief was to be sought against the Director. 

11.  In support of his application, the Applicant submitted a one-page affirmation also dated 6 October 2017 [Folio 2].  There the Applicant requested for judicial review against the Director.  He expressed that he was not satisfied with the Director’s decision.  He attached a 5-page document (“Exhibit 1”) and asked the court to look into the matter.  That 5-page document was actually the Board’s decision dated 28 September 2017, which disallowed the Applicant’s late filing of appeal.

12.  It is clear the Applicant wanted to seek judicial review against the Board’s decision dated 28 September 2017, which refused his late filing of appeal.  In the circumstance, the Board is putative respondent; the Director is putative interested party.

No request of hearing

13.  Order 53, rule 3 of the High Court Rules states:

The judge may determine the application for leave without a hearing, unless a hearing is requested in the notice of application, and need not sit in open court; and in any case the Registrar shall serve a copy of the judge’s order on the Applicant.

14.  In Form 86, the Applicant has not requested a hearing.  Nor has he stated such a wish in his affirmation.  There is nothing unambiguous in the application that calls for a hearing.  As such, I proceed to deal with the current application for leave for judicial review on consideration of documents only.

Director of Immigration (the Director)

15.  The immigration officer considered that the perceived harm from the Applicant’s alleged enemies was not as imminent and substantial as the Applicant asserted; the Applicant had not suffered physical or mental ill-treatment to a minimum level of severity; there were no substantial grounds for the Applicant to believe his enemies would harm or kill him upon his return to Pakistan.  The officer considered the Applicant’s assertion was far-fetched.  In any event, there were reasonable state protection and internal relocation alternatives available to the Applicant in Pakistan.

16.  On 17 May 2017, the immigration officer refused the Applicant’s non-refinement claim on these three applicable grounds: (i) persecution risk, (ii) CIDTP risk (or BOR 3 risk) and (iii) life risk (or BOR2 risk). The notice of decision was sent out to the Applicant’s stated address on the same day.

TCAB/NCPO (“the Board”)

17.  On 5 June 2017, the Applicant filed a notice of appeal/petition to the Board.  It was five days beyond the 14-day limitation period for such appeal.  The Adjudicator refused the Applicant’s late filing of appeal.

Grounds for judicial review

18.  In his one-page affirmation dated 6 October 2017, the Applicant referred to the Board’s decision and said he was not satisfied.  He did not give specifics.

Discussion

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

20.  A non-refoulement claim involves ‘life and limb’; any decision will bear significant consequences on an applicant.  Therefore, high standards of fairness must be achieved.  The court should look at an applicant’s case under ‘rigorous examination and anxious scrutiny’.[5]

Late filing of appeal to the Board

21.  S. 37ZS (1) of the Immigration Ordinance states:

A person who wishes to appeal against a decision referred to in section 37ZR must file with the Appeal Board a notice of appeal within 14 days after notice of the decision is given to the person unless late filing of the notice is allowed by the Board under section 37ZT(3).

22.  S. 37ZT of the Immigration Ordinance, Cap 115 provides:

(1) If a notice of appeal is filed after the expiry of the 14-day period referred to in section 37ZS(1), it must include an application for late filing of the notice, which—

(a) must include a statement of the reasons for failing to file the notice within that period; and

(b) must be accompanied by any documentary evidence relied on in support of the reasons referred to in paragraph (a).

(2) The Appeal Board must decide, as a preliminary decision without a hearing, whether the Board allows the late filing of the notice of appeal under subsection (3), and in doing so, the Board may only take account of—

(a) the statement of reasons stated in the application for late filing of the notice of appeal and any accompanying documentary evidence relied on in support of those reasons; and

(b) any other relevant matters of fact within the knowledge of the Board.

(3) If the Appeal Board is satisfied that by reason of special circumstances, it would be unjust not to allow the late filing of the notice of appeal, the Board may allow the late filing of the notice and must, by written notice, inform the person filing the notice of the Board’s decision.

(4) If the Appeal Board does not allow the late filing of the notice of appeal, the Board must, by written notice, inform the person filing the notice that the Board refuses the notice as it is filed out of time.

23.  The Director’s notice of decision was sent on 17 May 2017 by post to the Applicant’s stated address.  That is deemed to be the date when such notice was given to the Applicant.

24.  Within Hong Kong, mail would reach a designated address in a day or two.  Hence, even if the Applicant did not receive the Director’s notice of decision on the next day after posting, i.e., 18 May 2017, he would still get it no later than 19 May 2017.

25.  The Applicant, however, alleged in his notice of appeal to the Board dated 5 June 2017: –

“This document I received on 22 May 2017. Because of this, I got late.”[6]

26.  The Applicant alleged he got the Director's notice of decision only five days after it had been posted to his address.  The Adjudicator considered there was no evidence to support the Applicant’s assertion that he received the notice so late.  Furthermore, the Adjudicator was of the view that even if the Applicant only received the Director’s notice on 22 May 2017, the Applicant would still have enough time to file his appeal within the 14-day limitation period after 17 May 2017.

27.  The Adjudicator was of the view that the statutory regime governing late filing of appeal was strict.  He cited s. 37ZA(1)(b) of the Immigration Ordinance, which reads as follows:

(1) It is the duty of a claimant to substantiate a torture claim, and to this end, the claimant must—

(a) …

(b) comply with every requirement, procedure and condition (including any time limit)—

(i) prescribed by this Part; or

(ii) required or specified by any person under this Part.

28.  According to s. 37ZT(1), the Applicant in filing appeal late must include a statement of the reasons for failing to file the appeal notice within time and he must also submit documentary evidence which he would rely on in support of the reasons for his late application.

29.  In the present case, there was none of those.  The Applicant only alleged to the Adjudicator in writing that he received the Director’s notice late, on 22 May 2017.

30.  The Applicant’s claim that he received the Director’s notice of decision late was a bare assertion.  He failed to produce any supporting evidence.  For example, he could have produced the stamped envelope to show the postdate of the notice, or evidence to the effect that the notice had been sent to a wrong place and thus had to be re-delivered to him so that he only got it on 22 May 2017. The Adjudicator was right to find the Applicant failed to satisfy the statutory requirement of s. 37ZT(1) of the Immigration Ordinance, which demanded proof of justification for filing appeal late.

31.  Nevertheless, the Adjudicator went on to consider whether it was unjust not to allow the late filing of appeal.  He considered that even if the Applicant received the Director’s notice as late as 22 May 2017, the Applicant would still have sufficient time to file his appeal within the 14-day limitation period after 17 May 2017.

32.  The Applicant’s non-refoulement claim was a straight-forward one.  There is no evidence that it had become more difficult for appeal.  The Applicant failed to demonstrate that he had a lot to do for the preparation of his appeal.  The appeal process was not difficult either.  The Adjudicator was right to say that even if the Applicant received the Director’s notice only on 22 May 2017, he would still have sufficient time to file his appeal within the 14-day limitation period (ending on 31 May 2017).  Yet, the Applicant only filed his appeal on 5 June 2017.  He was thus late in his appeal filing by five days. It was not a long period but it was still an undue delay.

33.  The Adjudicator was right to rule that the statutory requirement in the Immigration Ordinance was to be followed strictly.  The provisions should not be applied in a technical manner.  However, a disciplined approach must be adopted, otherwise the regime of public law would be thrown into confusion and good administration could not be achieved.

34.  It was the Applicant’s duty to justify his late filing of appeal to the Board.  He failed to do so. Even in the current application for leave for judicial review, the Applicant still failed to prove he only got the Director’s notice of decision as late as 22 May 2017. He also failed to show that the appeal preparation had to cost him time so that he could only file his appeal to the Board late on 5 June 2017.

35.  In my judgement, the Adjudicator had proper basis for his decision to reject the Applicant's late filing of appeal in the circumstance.  His decision was not Wednesbury unreasonable.  He made no errors of law and there was no procedural unfairness.  The Adjudicator had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim.

36.  The Director is only an interested party in the current application for leave for judicial review.  For the sake of ‘rigorous examination and anxious scrutiny’, I review the Director’s decision dated 17 May 2017.  I am satisfied that the Director had proper basis for his findings, conclusions and decisions which were not Wednesbury unreasonable.  He made no errors of law and there was no procedural unfairness.  The Director had engaged in proper joint endeavour with the Applicant in the screening process.  The Applicant had been given reasonable and sufficient opportunities to state and elaborate his case.  The report of the Director showed he was acquainted with the facts and the law.  He considered the Applicant's case carefully and applied the law correctly.  He was entitled to render those findings, conclusions and decisions as he did and those findings/conclusions/decisions were all reasonable.  The Director had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim.

Conclusion

37.  The Applicant’s complaint is not reasonably arguable; he has no realistic prospect of success in the sought judicial review.  I therefore refuse to grant him leave for the review.

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

Form CALL-1