IL v. TORTURE CLAIMS APPEAL BOARD

HCAL 238/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 238 of 2015

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J U D G M E N T

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1.  This is the Applicant’s application for leave to apply for judicial review of the Decision of the Adjudicator[1] of the Torture Claims Appeal Board (“the Adjudicator’s Decision”) dated 13 May 2015 dismissing the Applicant’s non-refoulement claim.

Chronological background

2.  The Applicant made what was then called a “torture claim” on 18 February 2008.  He claimed that he would be subjected to torture if returned to Pakistan, seeking to invoke the non-refoulement principle in Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment and Punishment (“CAT”).

3.  The screening of torture claims were disrupted and eventually suspended by the change of legal landscape by the decisions FB [2009] 2 HKLRD 346, Ubamaka (2012) 15 HKCFAR 743 [AA/6] and C & Ors (2013) 16 HKCFAR 280.  As a result of these judgments, an enhanced administrative screening mechanism of torture claim was first set up.  Then the Unified Screening Mechanism (“USM”) was implemented on 3 March 2014 to screen all applicable grounds of non-refoulement protection.  The Applicant was served with “the Notice to Persons Making a Non-Refoulement Claim” on 28 March 2014.  His Non-Refoulement Claim Form (“NCF”) was submitted to the Director through the Duty Lawyer Service (“DLS”) on 13 May 2014.  A screening interview was conducted on 18 June 2014.  The case officer notified his decision of refusing the Applicant’s non-refoulement claim by a Notice of Decision dated 13 August 2014.

4.  The Applicant appealed against the refusal decision by lodging a Notice of Appeal/Petition to the Torture Claims Appeal Board (“TCAB”) / Non-refoulement Petition Office (“NCPO”) on 26 August 2014.   After an oral hearing on 17 December 2014 before the Adjudicator, he dismissed the appeal/petition by a written decision dated 13 May 2015.

5.  The Applicant applied for leave for judicial review by Form 86 dated 2 December 2015.  By way of an ex-parte Summons dated 30 November 2016 the Applicant further applied to amend the Form 86.  This application was granted by an Order dated 2 December 2016.

The Applicant’s case

6.  The Applicant is a Pakistani national.  The Applicant and his family are supporters of Pakistan Muslim League (Nawaz) (“PMLN”).  His birth city, Gujranwala is known colloquially as the “City of Wrestlers”.  Since he was young, the Applicant has been participating in wrestling competitions, and he is a nephew of a famous wrestler.

7.  In April 2007, the Applicant took part in a wrestling competition at the Jinnah Stadium before an audience of about 10,000 people.  His opponent was a man called “Khurram” who was a supporter of a rival political party, the Pakistan Muslim League (“MLQ”).  Khurram’s father was at that time a man of some influence and power in the area.  The Applicant defeated Khurram in the competition. 

8.  After the competition, Khurram’s father and brothers threatened the Applicant as a result of the defeat which was taken as an insult on the family.

9.  A few days later, another confrontation occurred.  This time Khurram, his family members together with their bodyguards came to the Applicant’s home.  They were armed and the Applicant was beaten.  He sustained serious injuries which required hospital treatment. 

10.  Following this confrontation, there were several subsequent threats, including shots fired into the air and visits to the Applicant’s home.  A report was made to the police but the police refused to file the complaint.  The Applicant eventually gave up the request for police assistance.

11.  With the assistance of an uncle, the Applicant left Pakistan on 11 July 2007 and travelled to China.  He remained there for 10 days and entered Hong Kong from China illegally.

12.  The Applicant was arrested by police for illegally remaining in Hong Kong on 30 January 2008 and was referred to the Immigration Department.  He was subsequently convicted on 4 February 2008 of illegally remaining in Hong Kong and was sentenced to 15 months’ imprisonment. 

The Adjudicator’s Decision

13.  The Adjudicator considered the Applicant’s claim under applicable grounds, namely: 

(1) Risk of torture (“the torture risk”);

(2) risk of cruel, inhuman or degrading treatment or punishment (“CIDTP”) (“the BOR3 risk”); and

(3) risk of persecution (“the prosecution risk”). 

14.  The Applicants’ claim failed on all applicable grounds.  Overall, the Adjudicator did not accept the Applicant’s version of events and found his assertions vague, unclear, contradictory, unconvincing and found the Applicant lacking in credibility.  He concluded that much of the evidence was based on hearsay and a great deal of what he said was speculation.  Further, there was no evidence in support of his assertions and the Adjudicator concluded therefore that the Applicant’s evidence should not be given any weight. 

15.  In consideration of the torture risk, the Adjudicator found that the Applicant failed to establish that his past experiences amounted to torture as contemplated under Section 37U of the Immigration Ordinance, Cap 115.  The Adjudicator found that the Applicant’s case was no more than a personal dispute.  Further, the Applicant failed to establish that there are substantial grounds for believing that he would be liable to be subject to torture if he were to be refouled to Pakistan.

16.  In consideration of the BOR 3 risk, again the Adjudicator found that the Applicant failed to establish, even to the low standard applicable, that he would face a genuine and substantial risk of being subjected to ill-treatment in the future if he was refouled to Pakistan. 

17.  The Applicant further failed to establish that he would be subject to persecution, under the convention reasoning, if he were to be refouled to Pakistan.  His fear of ill treatment arose from no more than a personal matter and this did not amount to persecution.  Consequently the Applicant failed to establish that his fear of persecution was well founded.

18.  The Adjudicator confirmed the decision of the Director and rejected the claim.

The law

19.  It is trite law that judicial review is not a further appeal to determine the merits of the claimant’s failed non-refoulement claim. 

20.  The test in granting leave for judicial review proceedings is whether the judicial review grounds are reasonably arguable with a realistic prospect of success. Peter Po Fun Chan v Winnie CW Cheung & anor (2007) 10 HKCFAR 676, at §§14-17.

21.  The court, in the exercise of its supervisory jurisdiction in the context of judicial review is to examine whether the Adjudicator in dismissing the Applicant’s claim:-

(a) made any error of law;

(b) handled the claim without compliance with the high standard of fairness as required by the law; and

(c) whether the substantive decision satisfied the enhanced Wednesbury test.

22.  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: Prabakar[2], at §45; AM v Director of Immigration,[2016] 2 HKC 393, at §34.

Application for extension of time to apply for judicial review against the Adjudicator’s Decision

23.  The Adjudicator’s decision was dated 3 May 2015.  The Applicant lodged the present application on 2 December 2015, almost 7 months after the Adjudicator’s Decision.  There was a delay of about 4 months after the upper limit of 3 months provided in Order 53 rule 4(1) of the Rules of the High Court in applying for leave to judicial review. 

24.  The Applicant has accepted that there has been a delay in making the application and applies for an extension of time.

Considerations for Extension of Time

25.  The primary requirement of O 53, r 4(1) is promptness and it invokes on an Applicant an obligation to act promptly Law Chun Loy v Secretary for Justice [2006] HKCU 1795, (HCAL 13/2005, 26 October 2006) per Hartmann J (as he was then). 

26.  The principles governing the application for extension of time in this context was examined in AW v Director of Immigration and Anor.  The factors, which are not fully exhaustive, to be considered by the Court include :

(1) the length of the delay;

(2) explanation of delay;

(3) the merits of the substantive application;

(4) any prejudice to the applicant/putative respondent and to public administration if the challenge is refused/allowed; and

(5) whether the judicial review raises issues of general or public importance.

27.  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.

Length of delay and explanation

28.  The burden is on the Applicant to show he has a good reason for delay, rather than a good excuse BI v Director of Immigration (CA) [2016] 2 HKLRD 520.

29.  This delay of almost 4 months is indeed not at the upper end of the spectrum.  However as is seen in Re Thomas Lai [2014] 6 HKC 1 (“Re Thomas Lai”) an extension of time was refused which involved a delay of slightly over 2 months after the expiry of the three months time limit for making an application.

30.  The main thrust of the Applicant’s submission to extend time is that he seeks the court not to take into account the period of about 4 months when his legal aid application was being processed.  That is the period between the date of the legal aid certificate on 11 August 2015 and the filing of the Notice of Application on 2 December 2015.

31.  The Court of Appeal in BI v Director of Immigration, at §131 above stated that an applicant must provide a full chronology regarding his legal aid application if he wishes to reply upon the time taken to obtain legal aid to explain the delay. 

32.  A chronology has been provided supported by correspondence from the DLA and the Applicant’s 2^nd Affirmation of 29 November 2016, however I have set out a fuller chronology encompassing the relevant dates as referred to by the Applicant’s 3^rd affirmation and the affirmation of the litigation manager Mohammad Mustafa of the firm filed on 3 February 2017.

33.  Essentially, the Applicant’s case for delay can be attributed to: 

(1) the assignment of solicitors by the Legal Aid Department (“the DLA”);

(2) time taken to retrieve replacement documents from:

(i) the Department of Immigration (“the DOI”);

(ii) friends and family in Pakistan; and

(3) time taken by the solicitors to peruse the documents, draft the Form 86 and file the Notice. 

34.  Chronology

13 May 2015	The Applicant was informed of the Adjudicator’s decision by Notice
21 May 2015	The Applicant made an application to the DLA for the purpose of challenging the decision The Applicant wrote to the NCPO to ask for the background and details of the case
22 May 2015	Applicant submitted grounds in support of the Application to the DLA
2 July 2015	Legal Aid was offered to the Applicant
10 July 2015	The DLA received the Applicant’s acceptance and the Applicant’s nomination of a solicitor
27 July 2015	The DLA refused the Applicant’s nomination for solicitor. The Applicant made a second nomination of a solicitor
29 July 2015	The DLA informs the Applicant the second nominated solicitor is refused
4 August 2015	Applicant submitted a 3rd nomination for solicitor to the DLA
11 August 2015	Legal Aid Certificate was issued (“LA Certificate”).  Case assigned to the Applicant’s 3rd nominated solicitor
11 August 2015	DLA’s letter to MCA Lai & Co., Solicitors (“the firm”) informing them of assignment to Applicant’s case
14 August 2015	Letter of assignment dated 11 August 2015 received by the Applicant’s solicitors
21 August 2015	Conference with the Applicant and the solicitors.  The solicitors obtained Applicant’s authorisation to obtain documents.  The Applicant informed the solicitors that he had lost all the documents in his possession relating to the claim.  The solicitors requested that the Applicant search his home and obtain further documents in support from family and friends in Pakistan
7 Sept 2015	The Applicant informed the solicitors that he was unable to obtain the documents from Pakistan and he did not have any further documents at his home
10 Sept 2015	The solicitors letter to the DOI requesting all documents pertaining to the Applicant’s claim
14 Sept 2015	The DOI acknowledged receipt of request via letter
7 October 2015	The DOI informed the solicitors that documents were ready for collection subject to charges
8 October 2015	The solicitors made payment to the DOI for charges and made appointment for collection of documents on 23 October 2015
(On or about)23 Nov 2015	The solicitors and the Applicant attended conference to Finalise of instructions
2 Dec 2015	Notice of Application filed

Time taken to apply for and obtain legal aid

35.  The Applicant’s explanation for delay is partly because his application was being processed by legal aid. 

36.  The Applicant made the legal aid application in sufficient time about 8 days after the Decision.  Legal aid was granted to the Applicant on 2 July approximately 1.5 months after his application for legal aid.  No solicitor was granted until approximately 6 weeks later when the LA Certificate was issued on 11 August 2015.  No reasons were forthcoming to explain the delay in the nomination of solicitor or the rejection of the Applicant’s nominations until the 3^rd affirmation of the Applicant filed on 3 February 2017 attaching a copy of a letter dated 27 January 2017 from the DLA.

37.  In the present case the Applicant had nominated the present and same firm of solicitors all along and it is the same firm representing him now.  The only change was the nomination of a different solicitor.  In the DLA letter dated 27 January 2017 it explains that the first and second nominated solicitor by the Applicant although in the same firm had been rejected as the nominated solicitor had insufficient experience.  It was not explained why even after the third nomination was made it took another 7 days before the LA certificate was granted. 

38.  The DLA recognized the tight time frame to file the Form 86 in time.  In their answer to a letter to the firm dated 9 December 2016 when the firm asked DLA for an explanation why the scope of the Legal Aid Certificate dated 11 August 2015 was limited to the filing Form 86 and applying for stay of proceedings. The DLA stated:-

“you will appreciate it that there is a very tight time limit for applications for judicial review to be filed, namely three months from the date of the subject decision. As such, when we were processing the legal aid application in this case, the undersigned took the view that it was appropriate to grant legal aid for the aided person to file the Form 86 as soon as possible in order to meet the tight time frame.”

39.  The DLA also noted in that letter that the firm had been assigned many legal aid applications for judicial review against decisions made by the TCAB and the strict time frame for the application, bearing in mind the time when the LA certificate was granted. 

40.  The firm nominated was the same throughout the applications.  This firm has represented numerous applicants for the present type of applications. Those within that firm are familiar with these applications.  Judging from the original Form 86 filed for the Applicant’s intended judicial review, it is not uncommon and there are many similar applications since the USM was implemented in 2013. 

41.  In Re Thomas Lai G Lam J stated:

“…there is no general proposition that difficulty or the time taken in obtaining legal aid is a good reason for extending time for application for judicial review”.(at §48(1)) (emphasis added)

Further:

“Where an applicant attributes the delay to the process of obtaining legal aid, it is incumbent on him to demonstrate he had exercised due diligence in making and processing of that application… The Applicant is the only party privy to such information and it is for him to provide an explanation for the delay”. (at §48(2)) (emphasis added)

42.  As per P Li J in AW v Secretary for Justice HCAL 91/2013, at §12, time spent applying for legal aid is not normally a valid ground unless there is evidence to show that the delay is entirely due to the application process and the applicant has acted promptly in the process. 

43.  The application for legal aid was processed within a reasonable time in that the legal aid offer was made on 2 July 2015.  On 10 July the Applicant nominated his first solicitor.  Twelve days later DLA tried to contact the Applicant but were unsuccessful.  DLA then called the firm for their assistance to contact the Applicant.  It was not explained by the Applicant why he was uncontactable during this period of time. 

44.  It took from 10 July to 11 August almost a month for the nomination of a solicitor.  I am at difficulties in understanding why it was so challenging to assign a solicitor from the same firm.  There is no evidence reason or explanation from the Applicant as to how he was nominating the solicitors.  I find curious and circumspect the process of nomination of solicitors from the same firm.

45.  Although I accept that a solicitor has to have a LA Certificate before commencement of work, the firm and DLA must have appreciated the urgency.  It must be borne in mind that the Applicant was nominating solicitors from the same firm.  The firm must have realized that time was of the essence. 

46.  I do not accept that the time in applying for legal aid nor nomination of a solicitor is a valid ground for the delay.  In the present case, there is no basis for the applicant to lay fault on the DLA.  The Applicant did not act promptly and he has not demonstrated that he had exercised due diligence in the making and the processing of his application. 

Time taken to obtain relevant documents from DOI

47.  By the time the assigned solicitor received the assignment letter from the DLA the three-month period had already expired.  As a result the solicitor should have proceeded with the preparation of the Form 86 with urgency.

48.  The firm had been assigned many similar cases and should have appreciated the tight time schedule as observed by the DLA letter dated 9 December 2015.

49.  The Applicant’s explanation for the delay in filing the Form 86 is because he had lost all his documents.  The loss of the Applicants papers and subsequent replacement resulted in a delay of 8 weeks, that is from 21 August 2015 when the Applicant informed the solicitors of the loss until 23 October 2015 when (it is presumed that) the solicitors collected the replacements from the DOI. 

50.  I am in agreement with Mr Sunny Li, Government Counsel for the Putative Interested Party that there is no explanation exactly what documents were lost and what further information was required.  Regardless, the processes that were put in place by the solicitors for the retrieval of these documents from the DOI on 23 October 2015 seems to me to be a futile exercise and no more than a waste of valuable time in a situation where time is of the essence. 

51.  The relevant documents are the decisions of the DOI, the Notice of Appeal/Petition and, in this case, that of the Adjudicator’s Decision.  Copies of these should have been in both the Applicant’s possession and in the DLA’s case file.  The Applicant was represented by the Duty Lawyer Service (DLS), the quickest and most efficient way to retrieve the documents or to find assistance was from the DLS.  This was not done by the firm. 

52.  In the Applicant’s third affirmation he said that he had been provided with a copy of the hearing bundle for the appeal to the TCAB.  After seeking legal advice from a law firm in Tsim Sha Tsui 2-3 days after the appeal hearing he remembers taking a bus and thinks he may have lost the bundle on the bus.  

53.  I find it an extraordinary claim that he had lost “all” his documents.  He was well aware that the Decision was of importance as he went to seek legal advice.  Despite losing these important documents, I find it hard to accept that Applicant did nothing at all about it. 

Time taken by the solicitors

54.  The LA Certificate was issued on 11 August 2015, assigning the solicitors and the Notice was filed on 2 December 2015, a delay of almost 4 months. 

55.  It was submitted by Mr Peter Barnes, counsel for the Applicant, that the Applicant’s legal representatives took appropriate and entirely necessary steps to obtain documents and to consider the matter before the drafting and filing of the Notice.  With respect, I do not agree.  It is apparent that there was a clear lack of urgency from those acting for the Applicant. 

56.  The solicitors could have made the application for judicial review in some urgency and then sought leave to amend, as they ultimately did do.

57.  It would appear to me that a firm with experienced solicitors, in applications such as this, should have full knowledge of the urgency in light of the time restrictions imposed by legislation and the consequences for the lateness and delay. 

58.  I do not accept the explanation that the Applicant was delayed in his application as he needed to find further documents in support from family and friends in Pakistan.  Any such documents were not made available to the Adjudicator and hence he would have been advised that these documents could hardly affect the legality of the Decision.  It was not explained what these further documents were.  As there was an urgency to the application, there was no requirement at that stage for any additional information and/or documents. 

59.  I find that these documents are an excuse rather than a genuine reason for the delay.

60.  It is incumbent on the Applicant to demonstrate he has exercised due diligence in the making and the processing of the application. In my view the Applicant has failed to do so.  The Applicant has advanced no good reasons for the delay.

Merits for the substantive application

61.  In re Thomas Lai (above ) at §45(3), it was held that the Court is entitled to:-

“… delve more deeply into the merits. Its function is not just to filter out the unarguable, but also to see whether indulgence in the form of extension of time should be granted to the applicant.”

62.  As Kwan J in AW stated:

“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).” (at §27)

63.  The Applicant advances three grounds of review. 

Ground 1

64.  It was argued that the Adjudicator had failed to consider all applicable grounds of non-refoulement and in particular non-refoulement on the grounds of risks of violation of articles 2 and 22 of the Hong Kong Bill of Rights.  (BOR 2 and BOR 22). From the papers filed the BOR 2 risks has been assessed and refused by the Director see his Notice of Further Decision dated 6 January 2017[3]. There are no merits in this ground.

65.  BOR 22 recognizes and incorporates into Hong Kong law the fundamental principle that all persons are equal before the law and are entitled without any discrimination the equal protection of the law.  The Applicant maintained that he was denied protection by the authorities, including the police, in part due to the political influence of his enemies over the authorities. 

66.  The Adjudicator found that the applicant was targeted for a purely personal matter and not for reason of race, religion, nationality, membership of a particular social group or political opinion.  The Applicant’s case has never been that he did not have equality before the law solely on the grounds of his race, color, sex, language, religion or social origin.  On the other hand, if the applicant’s case is that the failing in Pakistan authority in protecting his BOR 22 right would expose him to risk of CIDTP, his case would squarely fall under BOR 3 consideration.  Therefore his reliance on BOR 22 does not add anything to the Applicant’s case.

Ground 2

67.  It is submitted by Mr Barnes that the Adjudicator erred in law by stating that there was a two-limb test for establishing risk of persecution for the purposes of a non-refoulement claim when there is no two-limb requirement.

68.  The Adjudicator has plainly rejected the Applicant’s claim on persecution on the ground that he did not fall within the meaning of a refugee under Article 1A92 of the Refugee Convention.  As the Applicant’s claim failed under the persecution risks there is no merit in this ground. 

Ground 3

69.  The third ground of review addresses the findings of the Adjudicator that the Applicant was not credible, resulting in his evidence and assertions of fact being rejected as unreliable.  It is the Applicant’s case that these findings were irrational and flowed from a process which was unfair.

70.  The Applicant submits that the process was unfair in that the primary decision maker (the Director) had accepted a factual element of a claim, unless there are good reasons from departing from this concession, this should bind the Adjudicator on the appeal/petition. 

71.  Such a restriction to the Adjudicator’s duty to find facts is against the well-established principle in Hong Kong that the second-tier appeal is a rehearing with the Adjudicator who can make his own findings of fact. See AM v Director of Immigration & Anor [2014] 1 HKC 416, at §§28-30.

72.  The Adjudicator was criticized on various matters in the Amended Form 86 on his reasons provided in finding the Applicant credible.  The Applicant has made challenges to the substantive merits of the findings which are not within the realm of judicial review.

73.  The Adjudicator disbelieved the Applicant and found him to be lacking in creditability and his assertions speculative after holding an oral hearing. 

74.  The Adjudicator thoroughly highlighted the inconsistencies of the evidence in his decision and found it to be purely a personal matter.  I can see no error in his finding of fact. 

75.  I am unable to find any error of law or in the procedure before the Adjudicator. He exercised a high standard of fairness.  None of the grounds have a reasonable prospect of success. 

Questions of General Public Importance

76.  As set out in AW, what needs to be considered is 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 (at §27).

77.  There is no issue of public interest or importance in this case.  The crux of this judicial review is whether the Applicant’s own non-refoulement claim had been wrongly rejected by the Adjudicator and the particular circumstances of his case.

Prejudice

78.  In AW, Kwan J stated that 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 (at §27).

79.  The Applicant’s unjustifiable delay in bringing this application plainly prejudiced good administration in the exercise of effective immigration control in Hong Kong: see Nisa Azizan v Director of Immigration & Anor, HCAL 203/2015 (Unrep.), 15 April 2016, at §63. 

80.  The prejudice in this case is worsened by the fact that the Applicant has taken no action to proceed with the application after the Form 86 was lodged on 2^nd December 2015 until the Summons to amend the Form 86 on 30 November 2016, almost a year later.  Indeed, it has been now more than 20 months after the Decision, and yet the case is still at the leave stage.

81.  This is a case where there would be clear prejudice to public administration should it be allowed as the undue delay significantly impacts on effective immigration control. 

Conclusion

82.  In conclusion, given the undue delay and lack of good reasons, I would dismiss the Applicant’s application for an extension of time to make the application under O 53, r 4(1).  Additionally, even of an extension of time should have been granted, leave for judicial review would have been refused as none of the grounds for judicial review have any reasonable prospects of success. 

Costs

83.  I make the following Nisi Costs Order, to be made absolute should no application to vary be made within 14 days:

(1) Costs of the applications be to the Director, to be taxed if not agreed.

(2) The Applicant’s own costs to be taxed in accordance with the Legal Aid Regulations.

84.  Lastly, I thank both Counsel for their assistance in this matter.