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HCAL152/2018
[2019] HKCFI 2162
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 152 of 2018
BETWEEN
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Umar Shahzad |
Applicant |
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Torture Claims Appeal Board /
Non-refoulement Claims Petition Office |
Putative
Respondent |
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and |
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Director of Immigration |
Putative
Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s Decision (Ord. 53 r. 3)
Following:
Order by Deputy High Court Judge Josiah Lam:
(1) Extension of time for application for leave to apply for judicial review of the decision of Torture Claims Appeal Board dated 31 Ocotober 2017 be refused; and
(2) Application for leave to apply for judicial review be dismissed.
It is further directed that:
(1) If the applicant intends to appeal against the order refusing to extend the period for making the application for leave to apply for judicial review to the Court of Appeal, he must first apply to this court within 14 days of the date of this order by way of summons for leave to appeal;
(2) When filing the application for leave to appeal, the applicant must at the same time file with the court written submissions of not more than 5 pages in support of the application for leave to appeal;
(3) The court will thereafter decide whether it is necessary to direct the summons and the written submissions to be served on the putative respondent(s) and whether the application for leave to appeal shall be determined on paper;
(4) If the court decides that the application for leave to appeal shall be determined on paper, it will proceed to do so without further directions;
(5) Liberty to apply.
Observations for the Applicant
Background
1. The Applicant is a national of Pakistan. He is now aged 31 (DOB: 24 May 1988).
2. The Applicant claimed he would be harmed or killed by his girlfriend’s family if he returned to Pakistan.
3. The Applicant said he met a girl called Mehwish in 2010. They fell in love. Mehwish came from a rich family and a different caste. Her family was acquainted with Chaudhry Abdul Majid, who was the Prime Minister in the area of Azad Kashmir.
4. Mehwish became pregnant in 2012. Her family members were enraged because they considered it was a disgrace that she had got pregnant before marriage.
5. Mehwish warned the Applicant to leave his home. The Applicant went to stay with a friend in another village. He learnt Mehwish’s brothers had been looking for him and threatened to kill him. He also heard Mehwish was assaulted by her family and the baby did not survive. The Applicant failed to contact Mehwish anymore.
6. Later, the Applicant returned home. Mehwish’s brothers came to attack him. The Applicant managed to escape. He did not report the matter to the police because he felt shameful of his relationship with Mehwish.
7. The Applicant was in fear and stayed in other cities to avoid his enemies. He finally left Pakistan for China on 4 July 2014.
8. Sometime in July 2014, the Applicant entered Hong Kong illegally from China. He was arrested. The Applicant lodged a non-refoulement claim subsequently.
9. In mid-2015, the Applicant heard from his father in Pakistan that Mehwish’s family agreed to settle with him. He then withdrew his claim with intent to return to Pakistan. However, he soon found out his enemies only wanted to lure him to go back in order to kill him. In September 2015, the Applicant requested the Director of Immigration (“the Director”) to reopen his case.
10. The Applicant claimed his father was attacked by Mehwish’s brothers and subsequently died in January 2016.
11. The Applicant did not believe the Pakistan authorities would attend to his situation. He believed the police were corrupt and would side with his enemies, who were connected with some politicians. The Applicant also believed internal relocation was not viable. He said his enemies could find him sooner or later in Pakistan.
12. In the ensuing two‑tier screening process here, the Director and the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“TCAB/NCPO” or simply “the Board”) respectively rejected the Applicant’s claim with respect to 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 (BOR3 risk)[3] and (iv) risk of violation of the right to life (BOR2 risk)[4].
13. On 2 February 2018, the Applicant applied for leave for judicial review.
Respondent/Interested party
14. The Unified Screening Mechanism is a two-tier process. The Director screens an applicant’s non-refoulement claim first; the applicant may appeal to the Board which deals with his/her complaint on a rehearing basis.
15. In Re Moshsin Ali, the Court of Appeal states that “the decision of the immigration officer is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the board is pursued by a claimant.”[5]
16. In Form 86 (the notice of application for leave to apply for judicial review), the Applicant named the Board as respondent and the Director as interested party. The Board is the putative respondent; the Director is the putative interested party.
The Director’s decision
17. In his decision dated 20 May 2016, the Director did not accept the Applicant faced any torture risk, persecution risk or BOR3 risk. He also considered reasonable state protection and internal relocation were available to the Applicant in any event. The Director rejected the Applicant's claim with respect to those three applicable grounds.
18. In his decision dated 24 February 2017, the Director did not accept the Applicant faced any BOR2 risk. He rejected the Applicant's claim with respect to the last applicable ground.
The Board's decision
19. The Applicant appealed to the Board. The hearing was scheduled for 14 September 2017. A notice of hearing was sent to the address provided by the Applicant in his Notice of Appeal. It stated that if the Applicant failed to attend the hearing, the Board on proof that he had been served the Notice of Hearing might proceed to hear the appeal in his absence.[6]
20. The Applicant was absent on 14 September 2017. The Board then sent a letter to his address. It advised the Applicant that he should submit to the Board a written explanation of his failure to attend the Board hearing together with supporting documents. The Applicant was told it had to be done within 7 days. If he failed to do so or that his explanation was not satisfactory, the Board would proceed to determine his appeal.[7]
21. The Applicant did not respond to the letter. The Adjudicator therefore proceeded to determine the Applicant’s appeal on the materials before him.
22. The Adjudicator found there was a lack of details in certain aspects of the Applicant's claim and the Applicant had no supporting proof. Nevertheless, the Adjudicator was prepared to accept the Applicant and Mehwish had an intimate relationship. The girl’s family discovered she was pregnant. They threatened and assaulted the Applicant. However, the Adjudicator did not accept the Applicant faced any real risk of harm because he was able to remain in Pakistan without being hurt by his enemies from late 2012 to July 2014 when he left Pakistan. During that period, the Applicant even returned to his home village after he felt ‘very bored’ in the city of Rawalpindi. He had lived in his home area for a year before leaving Pakistan without any problem.
23. The Adjudicator did not accept the Applicant faced any torture risk, persecution risk, BOR2 risk or BOR3 risk. On 31 October 2017, he rejected the Applicant’s appeal with respect to all the four applicable grounds.
Court hearing
24. The first hearing took place on 15 June 2018. The Applicant confirmed all the grounds were in the documents. He made no elaboration but simply asked the court to give him more time to stay in Hong Kong.
25. It was later found out the Board's decision submitted by the Applicant and the particulars in his affirmation dated 2 February 2018 were related to a different person by the same name. The situation was pointed out to the Applicant in the second hearing on 12 September 2018. The Applicant said his friend processed everything for him. He himself had not received the Board's decision. He did not know how his friend got the wrong decision.
26. The correct Board decision made by the Adjudicator Mr. Bruce HENRY on 31 October 2017 was served on the Applicant in court on 12 September 2018. The matter was adjourned to 28 September 2018 for him to submit his revised grounds of application.
27. The Applicant produced a new affirmation, which was dated 27 September 2018. He said in court on 28 September 2018 that all the grounds of his application were in the new affirmation. He did not have anything to add.
28. The Applicant confirmed he had submitted everything during the screening process to prove his claim.
29. The decision made by the Adjudicator Mr. Bruce HENRY on 31 October 2017 was sent to the Applicant’s last reported address by ordinary post. That was a Yuen Long address, which was provided by the Applicant in his Notice of Appeal dated 3 June 2016. There was no returned mail. The Applicant explained in court that he had been living in Shamshuipo after he got married in September 2017. Before that, he had lived in Kwai Chung for 8-9 months. And before that, he had lived in Yuen Long. The Applicant said he informed the Board of his new address at the end of 2017.
Grounds of judicial review
30. Although the Applicant only named the Board as respondent, he in his affirmation dated 27 September 2018 said he was appealing against the Director's decision as well as the Board's decision. He said the Director wrongly decided his case and the Adjudicator did not address the issues. He complained the Director adopted a formula and biased approach while the Adjudicator’s decision was a template assessment.
31. The Applicant complained the Director misused the country-of-origin information ("COI") and failed to explain his balancing exercise.
32. The Applicant said apart from not getting the Board’s decision, he also had not received the Director's letter inviting him to submit additional facts or the Director's decision on BOR2 risk.
33. The Applicant said he was absent from the Board hearing since he had not got the Notice of Hearing from the Board.
34. The Applicant mentioned he lacked legal representation and language assistance. He said he did not fully understand the decisions that had been made against him.
Discussion
35. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.
36. 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’.[8] Nevertheless, it is said in Re Islam Rafiqul: –
“The role of the Court in a judicial review is not to provide a further avenue of appeal. The primary decision-makers are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of issue at hand, the Court should not usurp the role of the Board. Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The Court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.” [9]
37. The Applicant cannot seek judicial review of the Director's decision. (See para 15 above.) I shall only deal with his complaints which are relevant to the Board’s decision.
Address
38. The Applicant said apart from not getting the Board's decision dated 31 October 2017, he also had not received the Director's letter dated 24 January 2017 inviting him to submit additional facts or the Director's decision on BOR2 risk dated 24 February 2017.
39. The said documents were all sent to the Applicant’s address last known to the Director: Flat 1, 3/F Ho Yuet Building, 5 On Leung Lane, Yuen Long. It was also the address provided by the Applicant to the Board in his Notice of Appeal dated 3 June 2016.
40. The Applicant admitted in court that he had been living in Shamshuipo after he got married in September 2017. Before that, he had lived in Kwai Chung for 8-9 months. And before that, he had lived in Yuen Long. The Applicant said he only informed the Immigration Department of his Shamshuipo address at the end of 2017.
41. If the Applicant really had not got the said documents, he merely had himself to blame. Nevertheless, he confirmed in court that he had submitted all of his case to the Immigration Department in the screening process. The Applicant was, therefore, not prejudiced by the address problem he had caused all by himself.
42. The Applicant said he could answer the Adjudicator’s query but for his absence from the Board hearing scheduled for 14 September 2017. However, he failed to show in his affirmation and in court that he really had any relevant and worthwhile representation to make before the Adjudicator.
43. The Applicant complained the Adjudicator did not address his case fairly or properly but just made a template assessment.
44. The accusation was not correct. The Adjudicator considered the Applicant's case on all the materials before him. He understood the Applicant’s claim but he did not accept the Applicant had any real risk that warranted non-refoulement protection. The Adjudicator had proper basis for his finding and decision which were not Wednesbury unreasonable. He made no errors of law and there was no procedural unfairness. The Adjudicator was acquainted with the facts. He considered the Applicant’s claim carefully and applied the law correctly. The Adjudicator had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim.
45. The Applicant said he lacked legal assistance after the Director's decision dated 20 May 2016.
46. The Court of Appeal has repeatedly stated that an applicant of non-refoulement claim does not have an absolute right to free legal representation at all stages of the proceedings.[10] The Applicant failed to show his case was undermined or prejudiced by the lack of legal representation only in the later stages of the screening process.
47. The Applicant raised his language problem.
48. It is trite the high standards of fairness do not demand interpretation service being made available all the time to a non-refoulement claimant.[11]
49. In the current application, a friend helped the Applicant to prepare Form 86 and the affirmation. Apparently, the Applicant could find someone to assist him with interpretation/translation and dealing with English documents at all material times. Furthermore, he was assisted by qualified interpreters while being represented by the Duty Lawyer Service and also in the screening process before the Director. The Applicant had much exaggerated his language problem.
Late application for leave for judicial review
50. Order 53 rule 3(1) of the Rules of the High Court reads: –
(1) No application for judicial review shall be made unless the leave of the Court has been obtained in accordance with this rule.
51. Order 53 rules 4(1) and (2) of the Rules of the High Court read: –
(1) An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made.
(2) Where the relief sought is an order of certiorari in respect of any judgment, order, conviction or other proceeding, the date when grounds for the application first arose shall be taken to be the date of that judgment, order, conviction or proceeding.
52. It is clear from these provisions that no application can be made after the three-month period unless the Court considers that there is good reason for extending time. The Applicant must provide good reasons for the Court to give an extension of time. It is a pre-requisite in late application for leave for judicial review.[12] If the court is not satisfied that there is good reason for extending time, then no application for judicial review can be made in accordance with rule 4(1). In that event, the Court should not proceed to consider if leave should be granted or refused on other grounds.[13]
53. In the present case, the Board’s decision was issued on 31 October 2017. The Applicant applied for leave for judicial review on 2 February 2018. Excluding the 3-month grace period for filing, he was 2 days late.
54. The Applicant said he did not receive the Board's decision dated 31 October 2017. He knew his case was over only a week before 2 February 2018. Then he sought assistance from a friend to help him to take out the current application.
55. As said in para 41 above, if the Applicant really had not received the Board's decision for prompt action in time he only had himself to blame.
56. The current application was just two days late but it was still late and for no good reason. Furthermore, it involved no issue of general importance and had no merits at all. The Applicant’s application for leave to apply for judicial review must be dismissed.
Conclusion
57. The Applicant's application for leave for judicial review is late. He fails to show any good reason to justify the delay. There are no circumstances that oblige the court to consider his late application. I therefore dismiss his application for leave for judicial review.
Dated the 3rd day of September 2019
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(Alan Ngan) |
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for Registrar, High Court |
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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must: |
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant
on 3/9/2019
Umar Shahzad
Applicant’s ref. no:
Nil. |
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 3/9/2019
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 3828/16/6/18/P995
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 345/16 & RBCZ 9000118/17 (formerly RBCZ 13034/15)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] As defined in Part VIIC of the Immigration Ordinance, Cap 115, which definition is the same as that found in Article 1 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
[2] By reference to the non-refoulement principle under Articles 33 and 1A(2) of the 1951 Convention relating to the Status of Refugees.
[3] Under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[4] Under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[5] CACV 54/2018, para 45.
[6] The Board's decision, para 6.
[7] The Board's decision, para 8.
[8] Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45.
[9] CACV 219/2018 [2018] HKCA 570, para 14(1).
[10] CACV 284/2017 Re Paswan Shibu Lal, para 21.
[11] See Re Zaman Muhammad [2018] HKCA 486 at [13]; Re Gurnishan Singh [2018] HKCA 704 at [13].
[12] CACV 110/2016 Kwok Cheuk Kin, para 17.
[13] ibid., para 19.
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