RAJA MUHAMMAD ZUBAIR MUKHTAR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL 272/2019

[2022] HKCFI 454

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 272 of 2019

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

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

Leave to apply for Judicial Review refused.

Observations for the Applicant (Order by Deputy High Court Judge To):

Introduction

1.  This is the Applicant’s application for leave to apply for judicial review of the decision of the Torture Claims Appeal Board/Adjudicator of the Non-Refoulement Claims Petition Office (the “Board”) dated 25 November 2016 (the “2016 Decision”) and 4 January 2019 (the “2019 Decision”), and the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 8 May 2015 (the “Notice”) and Notice of Further Decision dated 20 January 2017 (the “Further Notice”). 

2.  The Decision of the Board is reviewable by judicial process but not the decision of the Director in the Notice because there are established statutory procedures of appeal to the Board and the Applicant has invoked those procedures.  The Director’s decisions in the two Notices were superseded by the Board’s two Decisions and are no longer susceptible to judicial review: Re Moshsin Ali[1]. For the benefit of the Applicant, the Court treated his complaints against the Director as directed at the Board also.  

3.  The Applicant is a Pakistani national, now aged 48.  He arrived in Hong Kong as a visitor on 27 February 1994 and was permitted to stay until 17 March 1994.  He overstayed thereafter.  He was arrested by the police and removed from Hong Kong on 13 July 1995.  On 21 September 2013, he was arrested by the police for remaining in Hong Kong without authority after having landed unlawfully.  Then, he lodged his non-refoulement claim.

4.  In due course, his non-refoulement claims were assessed on all three applicable grounds then available under the Unified Screening Mechanism (the “USM”), namely: Torture Risk[2]; BOR 3 Risk[3]; and Persecution Risk[4]. By a Notice dated 8 May 2019, the Director rejected his claims.  The Applicant appealed to the Board against the decision in the Notice.  An oral hearing was held on 28 July 2016 (the “2016 Hearing”).  He was legal represented and elected not to give evidence.  His appeal was dismissed by the Board’s 2016 Decision. 

5.  On 28 December 2016, the Director invited the Applicant to submit additional facts, in particular those relevant to BOR 2 Risk[5], which he might have omitted due to any misunderstanding.  The Applicant did not respond.  By the Further Notice, the Director rejected his application for protection under BOR 2 Risk ground.    The Applicant appealed to the Board.  An oral hearing was held on 21 November 2018 (the “2018 Hearing”).  His appeal was dismissed by the Board’s 2019 Decision. 

6.  On 29 January 2019, he sought leave to apply for judicial review of the 2016 Decision and 2019 Decision.

7.   The 2016 Decision was made on 25 November 2016.  It was not until 26 months have lapsed before he sought judicial review of that decision.  Order 53, rule 4(1) of the Rules of the High Court provides that an application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when the grounds for application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made.  An application made after three months is deemed to have been made with undue delay.  To obtain extension of time for making an application, the applicant has to satisfy the court that there are credible valid explanations for the delay.  Insofar as his application is related to the 2016 Decision is concerned, it is twenty-three months out of time.  His application relating to the 2019 Decision was made within time.

The Applicant’s case

8.  The Applicant was legally represented at the oral hearing before the Board at the 2016 Hearing.  He elected not to give evidence.  The following is a summary of the Applicant’s case mainly based on the information in the non-refoulement claim form (“NCF”) prepared by him with the assistance of the Duty Lawyer Service and the record of his screening interview with an immigration officer. 

9.  In gist, his case is that he was an active supporter of Pakistan People’s Party (“PPP”) and his active contribution to PPP attracted the attention of the rival Pakistan Muslim League (Noon) (“PML(N)”). Since 2011 there were rumours in the community that people from PML(N) would harm him if he did not join PML(N).  In mid-2012, his neighbour and PML(N) supporter Sajawal told him that he knew members of PML(N) were planning an attack on him.  He received telephone calls from two men affiliated with PML(N) threatening that unless he refrained from supporting PPP, he would be killed. At the suggestion of Sajawal, he left Pakistan in November 2012 and arrived in Guangzhou via Bangkok.  He then entered Hong Kong illegally by boat.

The finding of the Board

10.  The Applicant’s fear was based on rumours and what his neighbour told him.  He elected not to give evidence and failed to give an account of the source of the rumours and allegation supplied by Sajawal.  The Board could give little weight to such hearsay evidence.  There was no evidence that the Applicant suffered any pain or harm, let alone serious ones or that the suffering was caused or instigated by or with the consent of an official or people acting in an official capacity. The Board was not satisfied that the Applicant had proved the factual basis in support of his claim on any of the three applicable grounds under the USM, ie Torture Risk, BOR 3 Risk and Persecution Risk under the 2016 Decision.  The Board dismissed his appeal against the Notice.

11.  The 2018 Hearing was scheduled for the Applicant in relation to his appeal against the Further Notice relating to his claim based on BOR 2 Risk.  Despite, the Director’s invitation, he did not provide any further information to the Immigration Department.  He testified before the Board but provided no further information, facts or material in respect of his claim based on BOR 2 Risk.  He confirmed that he did not face any serious punishment in his own country.  The Board found he had failed to prove there is a genuine and substantial risk as well as a personal risk of irreparable harm either in his home country or in any country to which he may subsequently be removed.  The Board dismissed his appeal against the Further Notice.

The legal principles applicable to judicial review    

12.  The role of the court in judicial review is not to re-assess the non-refoulement claims afresh.  The primary decision-makers in a claim for non-refoulement are the Director and the Board.  They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality:  see Nupur Mst v Director of Immigration[6].

The law applicable to extension of time for applying for leave to apply for judicial review

13.  The Applicant’s application in relation to the 2016 Decision is twenty-three months out of time.  The court’s leave is required in making an application for judicial review.  Section 21K(6) of the High Court Ordinance provides that where the Court of First Instance considers that there has been undue delay in making an application for judicial review, the court may refuse to grant leave for the making of the application; or any relief sought on the application, 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.

14.  In AW and Director of Immigration and William Lam[7], the Court of Appeal held that 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:

(1)   length of delay;

(2)   explanation for the delay;

(3)   merits of the substantive application;

(4)   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; and

(5)   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.

Whether extension of time should be allowed

15.  In paragraph 5 and 6 of his supporting affirmation filed on the same day, the Applicant gave the following explanation for the delay.  The 2016 Decision was made on 25 November 2016.  At the time, he was serving his sentence in Pik Uk Prison and he no longer had legal representation.  He has not been advised on his legal rights.  His explanation does not explain why he did not apply for judicial review until 26 months later. 

16.  As a matter of law, ignorance of the law is not a valid reason for not taking appropriate steps to enforce one’s right.  Likewise, ignorance of his legal right is not an explanation for the delay in appealing. 

17.  Furthermore, as disclosed in his affirmation, he was served the Further Notice on 20 January 2017 while he was still in prison custody.  As he alleged, he was not advised as to the significance of this Further Notice and was not legally represented.  However, he lodged an appeal to the Board on his own without assistance.  And when the Board dismissed his appeal, he promptly applied for leave to apply for judicial review of the 2019 Decision.  He could offer no explanation for a very substantial period of delay.

18.  For reasons as given in the following sections, there are no merits in the application for leave to apply for judicial review insofar as the 2016 Decision is concerned.  It must necessarily follow that the Applicant would suffer no prejudice if extension of time to apply is refused.  On the other hand, if extension is allowed, the prejudice to the putative respondent is obvious.  It has to incur time and costs in contesting the review which is bound to fail.  Public resources will be unnecessarily wasted and other non-refoulement claimants’ access to the non-refoulement process and to the courts is delayed.  This application raises no questions of general public importance.  Accordingly, the application insofar as it is related to the 2016 Decision should be dismissed.

Grounds for judicial review

19.  The Applicant did not state his grounds for application in the Notice of Application for Leave to Apply for Judicial Review (Form 86). In his affirmation filed in support of his application, he set out his background in paragraphs 1 to 4; his explanation for the delay in seeking leave in relation to the judicial review of the 2016 Decision in paragraphs 5 and 6; and the background leading to his application in paragraphs 7 and 8.  The grounds of his application as set out in the rest of his affirmation, ie paragraphs 9 to 13 are:

(1)      lack of legal and language assistance and procedural unfairness (paragraphs 9 and 11);

(2)      not informed of the reason of the Board’s assessment of his evidence (paragraph 10);

(3)      unable to determine if the Board had provided adequate reasons (paragraph 12); and

(4)      he reserved his right to raise further grounds (paragraph 13).

20.  In response to the Court’s letter dated 28 May 2021 inviting submissions, the Applicant advanced the following additional grounds:

(5)      Rider (A): the level of threat still exists;

(6)      Rider (B): he is an asylum seeker in fear of domestic violence or sexual assault, if returned to his home country;

(7)      Rider (C): the Board failed to make sufficient enquiry from Pakistan authorities; the Decision was Mallawa because the Board’s finding that the violence was not severe enough to qualify as “torture” was not supported by medical reports; and

(8)      Rider (D): he is telling the truth.

21.  At the hearing, he produced another written submission which repeated Rider (B) and (C) as Rider (A) and (B) respectively. In addition, it advanced the following further grounds:

(9)      he had no faith in Pakistan government, there is no justice in Pakistan;

(10)  significant changes in circumstances in Pakistan;

(11)  the Director adopted a formula approach to come to the conclusion that state protection is available;

(12)  no assistance given to him; the Board failed to attain high standard of fairness;

(13)  “True France’s should be beside Messrs. Against the normal standard of substantial Clement.  And note the public.”

(14)  the Board erred in giving no weight to his evidence and dismissing it as hearsay;

(15)  the Board erred in excluding matters totally from consideration simply because it believed the evidence is fragile.

Grounds (1) and (12) – legal and language assistance, high standard of fairness

22.  In Re Zafar Muazam[8], Re Zunariyah[9], Re Zahid Abbas[10], Re Tariq Farhan[11], and Re Lopchan Subash[12], the Court of Appeal held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar[13] nor the judgment of FB v. Director of Immigration[14] prescribes that a claimant of BOR 2 or BOR 3 or persecution risks has an absolute right to free legal representation at all stages of the proceedings.  A non-refoulement claimant does not have an absolute right to free legal representation at all stages of the proceedings.  The real question is whether he is prejudiced for want of legal and language assistance.

23.  The Applicants had the benefit of legal representation in presenting his case to the Director and in the appeal against the Notice before the Board during the 2016 Hearing.  All the benefits that legal representation could have afforded them were contained in his written submissions, non-refoulement claim form and answers in the screening interview given under legal advice.  All these had been presented to the Director, which were then presented to the Board at the 2016 Hearing and 2018 Hearing.  Despite he was not legally represented at the 2018 Hearing, all the benefits which legal representation could have afforded him were before the Board. 

24.  Likewise, in Karamjit Singh[15], the Court of Appeal agreed with the Court of First Instance that it could not have been the intention of any authority laying down the principle of a high standard of fairness that the principle would include provision of interpretation service at any time an applicant desired or required.  It must be borne in mind that it was the Applicant’s choice to come to Hong Kong where the official languages are Chinese and English.  In the circumstances, he has to live with or cope with his language disability.  He cannot expect to have the luxury of any documents to be fully translated into his first language for his benefit as and when he requires.  He has to find assistance himself from among his friends and his ethnic community. 

25.  Furthermore, the appeal bundle is basically made up of his NCF, the record of his screening interview, and the Director’s Notice of Decision with the COI.  He knows what is contained in his NCF which was filled in by him with the assistance of an interpreter and the Duty Lawyer Service.  He knows what is contained in the record of screening interview which he attended with the assistance of interpreter and legal representation.  The record had been read back to him in his own language and he signed to acknowledge that he understood and agreed with its contents and that no amendment was necessary. Recognizing the limitation in his foreign language ability and the importance of his claim, he ought to have taken notes, at least very brief ones, to remind him of what he had said or written rather than relying on the host country to provide him the convenience of interpretation at his fingertips. 

26.  Taking a global view of the circumstances, the Applicants suffered no prejudice due to lack of legal representation before the Board during the 2018 Hearing or lack of language or legal assistance after the determination of the Notice.

Ground (2) - not informed of the reason of the Board’s assessment of his evidence;

Ground (3) – unable to determine if the Board had provided adequate reasons);

Ground (13) - erred in giving no weight to his evidence and dismissing it as hearsay;

Ground (14) – excluding fragile evidence

27.  From paragraphs 10 and 11, it is amply clear that the Board rejected the entirety of hearsay evidence given by the Applicant or gave it no weight.  That hearsay evidence forms the centrepiece of his case.  The Board gave reasons for so rejecting.  Basically, it is hearsay and the Applicant did not allow the Board the opportunity to test the evidence by asking him questions.  The weight to be given to each piece of evidence is solely a matter for the Board.  It is open to the Board to give a piece of evidence no weight or to exclude it altogether because in its view it is incredible or fragile.  It must necessarily follow that the Board has not failed in informing the Applicant the reason of its assessment of his evidence such that he may determine if the Board had provided adequate reasons for its Decisions. There is no substance in this ground. 

Ground (5) – level of threat still exists

Ground (8) - Rider (D): the Applicant was telling the truth

Ground (9) - he had no faith in Pakistan government, there is no justice in Pakistan and

Ground (10) significant changes in circumstances in Pakistan

28.  All these grounds revolve around the issue of the Board’s finding of fact.  Assessment of a witness credibility, the veracity of his evidence, the level of threat or risk and the circumstances in the home country are finding of fact solely within the province of the Board.  The Board referred to the Country of Origin Information (“COI”) in making its finding of the circumstances in Pakistan, its government and judicial system.  The COI relied on by the Board are from authoritative and credible sources.  Other than a bare assertion of changes in circumstances in Pakistan, the Applicant gave no particulars and supporting evidence.  This ground is a challenge of the Board’s finding of fact which is not open to the Applicant unless the finding is vitiated by error of law, procedural unfairness or irrationality.  No such argument has been advanced.

Ground (6) - Rider (B): he is an asylum seeker in fear of returning to his home country because of domestic violence or sexual assault

29.  The Applicant’s case before the Board at the 2016 Hearing was based on rumours in his community and a tip off from his neighbour that PML(N) members were going to harm and kill him and not causing “domestic or sexual violence” to his family members.  At the hearing, he argued that his enemies caused domestic or sexual violence to his family by making obnoxious calls and verbal abuses to his family.  This is a new ground.  Even had he proceeded on the basis of this new allegation, his claim would have been rejected for the same reason that such violence was not serious enough to constitute “torture” for the purpose of BOR 3 or Torture Risk nor was there evidence that such violence was caused or instigated by or with the consent of a public official or people acting in an official capacity.

Ground (7) - Rider (C): the Board failed to make sufficient enquiry from Pakistan authorities the Decision was Mallawa because the Board’s finding that the violence was not severe enough to qualify as “torture” was not supported by medical reports medical reports

30.  The Applicant seems to have assumed that the Board has to be satisfied on medical evidence that the violence suffered was not serious before it may reject the Applicant’s claim.  He overlooked that it is the claimant seeking protection who bears the burden of proving the ill-treatment he suffered qualified as “torture”.  There is no evidence that the Applicant had made any complaints to the immigration officer about his medical condition, whether physical or psychological or psychiatric. There is no substance in this ground.

Ground (11) - formula approach in coming to the conclusion that state protection is available

31.  The Board had considered and balanced conflicting COI in paragraphs 31 and 32 of the 2016 Decision.  The weight to be given to each piece of information in a COI is a matter solely within the province of the Board which the Court in a judicial review will not interfere save the finding was vitiated by error of law, procedural unfairness or irrationality.  No such argument has been advanced by the Applicant.  Furthermore, it is important that it was the Applicant who chose not to seek police assistance and hence the Board found there was no evidence that the police failed to take actions to protect him.

Ground (13) - “True France’s should be beside Messrs …”

32.  This ground is incomprehensible.  The Applicant said that these grounds were written by his friend for him and that this ground was conjured by his friend.

Conclusion

33.  The Applicant said that these grounds and submissions were prepared by his friend; that some of the grounds were conjured by his friend and that he did not know the contents.  Except as discussed above, he was unable to give particulars of most of the grounds.  The overall thrust of these grounds is that he disagreed with the finding of fact by the Board.  None of these grounds is arguable.  However, the Court took the extra step of perusing the Decision and the papers with a view to looking for other possible grounds which he might have failed to advance through lack of legal knowledge or representation.

34.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; and correctly identified the issues.  The Board observed a very high standard of fairness.  In essence, the Board found that the Applicant had failed to prove even to the low standard required the primary facts required to support his claim on any of the applicable grounds under the USM.  Basically, the Applicant failed to discharge his burden of proving his fears and risks.  The Board’s conclusion was further supported by availability of state protection.  These are finding of facts which are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality.  The Court could detect no error of law in the two Decisions or unfairness at any stage of the non-refoulement proceedings.  The Board’s Decisions did satisfy the enhanced Wednesbury test.  They are not Wednesbury unreasonable or irrational. The Decisions are utterly without fault.  The Applicant’s grounds are not reasonably arguable.  There is no realistic prospect of success in the proposed judicial review.  Leave to apply for judicial review was therefore refused.

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

[1] [2018] HKCA 549

[2] Risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

[3] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”)

[4] Risk of persecution by reference to the non-refoulement principle under Article 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol

[5] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383

[6] [2018] HKCA 524 at [14(1)]

[7] CACV 63/2015 (unreported) 3 November 2015

[8] cacv 2/2018, (unreported) 23 March 2018

[9] [2018] HKCA 14

[10] [2018] HKCA 15

[11] [2018] HKCA 17

[12] [2018] HKCA 37

[13] (2004) 7 HKCFAR 187

[14] HCAL 51 of 2007

[15] CACV 78/2018