MUHAMMAD SHEHBAZ v. DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL750/2017

[2018] HKCFI 1412

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 750 of 2017

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

Following;

	consideration of documents only
	consideration of 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. He is now aged 38 (DOB: 11 October 1979).

2.  The Applicant claimed that he would be harmed or killed by his stepmother Mukhtiari (“M”) and the Pakistan police if he was refouled to Pakistan.

3.  The Applicant said M became his stepmother when he was young. In 1997 (when the Applicant was about 18), M started to run a dance group. Her business was supported by the local police. She had connection with police officers and influential people of the Pakistan Muslim League (Nawaz) [“PML(N)”].

4.  M tried to force the Applicant and his elder brother to join her dance group as dancers and sex workers. The brother ran away from the family. The Applicant also tried to run away but was twice caught and brought back to M. The police helped M to beat the Applicant up. In order to make a living and to protect his sisters, the Applicant succumbed to M’s request. His father did not intervene.

5.  Once, the Applicant were gang-raped by 6 to 7 male guests. Out of anger, he assaulted M. Then he ran away from home. One day, he was caught in the street and handed over to his father. He was beaten up by M’s employees. Those men even tried to pour acid on his face but missed. The Applicant was only injured on the right leg by the acid.

6.  The Applicant continued to work for M. Whenever he refused, M would beat up the Applicant’s sisters.

7.  After having worked as a sex worker for two years, the Applicant planned for an escape. He came to Hong Kong in October 2000 but was repatriated to Pakistan in December 2001.

8.  When the Applicant was back in Pakistan, he learned that M had tortured his sisters. One night, the Applicant went home to attack M with a shovel. He was later caught and beaten up. He was taken to the police station and beaten by the police more badly. The Applicant believed the police were acting under the influence of some PML(N) people affiliated with M. After having been detained for a few days and under threats, the Applicant agreed to work for M again.

9.  The Applicant's brother later helped him to flee to Hong Kong again in June 2002 as a visitor, using another identity. The Applicant was required to leave Hong Kong after 10 June 2002. However, he overstayed and was only arrested by the police four years later in July 2006. He then lodged a torture claim.

10.  In 2009, the Applicant learned that M had falsely accused him of rape and robbery. He feared the Pakistan police would arrest him for the false allegations. He thought internal relocation was not viable.

11.  In the two-tier Unified Screening Mechanism here, the Director of Immigration (“the Director”) and the Torture Claims Appeal Board/ Non-refoulement Claims Petition office (“TCAB/NCPO” or simply “the Board”) respectively refused 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 (CIDTP risk or BOR3 risk)[3]  and (iv) risk of violation of the right to life (BOR2 risk)[4].

12.  On 10 October 2017, the Applicant applied for leave for judicial review.

Chronology of events

13.  Things happened in this order: –

2000-10-5	The Applicant entered Hong Kong as a visitor. He was allowed to stay until 12 October 2000.
2000-10-13	The Applicant began to overstay here.
2001-12-5	The Applicant was arrested by the police.
2001-12-19	The Applicant was sent back to Pakistan.
2002-6-3	The Applicant entered Hong Kong again using another identity. He was allowed to stay until 10 June 2002 but he overstayed.
2006-7-4	The Applicant was arrested by the police.
2006-7-17	The Applicant raised a torture claim.
2016-8-11	The Director interviewed the Applicant.
2016-8-19	The Director refused the Applicant’s claim with respect to these three applicable grounds: (i) torture risk, (ii) persecution risk and (iii) CIDTP risk (BOR3 risk). [“the Director's decision”]
2016-9-15	The Director invited the Applicant to submit additional facts for the consideration of BOR2 risk.
2016-9-29	The Applicant failed to submit additional facts by the deadline or thereafter. He only provided a copy of marriage certificate indicating he had a solemnized marriage in Hong Kong.
2016-10-31	The Director refused the Applicant’s claim with respect to the fourth applicable ground: life risk (BOR2 risk). [“the Director's further decision”]
2016-11-4	The Applicant appeared before the Board for appeal.
2016-11-16	The Adjudicator refused Applicant’s claim with respect to all the four applicable grounds. [“the Board’s decision”]
2017-10-10	The Applicant applied for leave for judicial review.

Respondents

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 Form 86 (the notice of application for leave to apply for judicial review), the Applicant named the Director and the Adjudicator as respondents.

16.  The Adjudicator did not act in her personal capacity. She represented the Board. In court, the Applicant agreed to change to sue the Board in lieu of the Adjudicator.  Thus, the Director is the first putative respondent; the Board is the second putative respondent.

Director of Immigration (the Director)

17.  In the Director’s decision dated 19 August 2016, the immigration officer found there were many inconsistencies in the Applicant’s allegations. He did not find the Applicant reliable or his claim genuine.

18.  Nevertheless, the officer went on to consider the strength of the Applicant’s claim. He found there were no substantial grounds to believe the Applicant’s feared risk was likely to materialise.

19.  The officer was aware there were reports of corruption in the Pakistan police and government. However, there was also objective country-of-origin information (“COI”) to show the Pakistan government had taken practical steps to monitor the conduct of the police and to improve their effectiveness. The officer considered reasonable state protection was available to the Applicant and that he would not be denied of justice in Pakistan. The officer also considered reasonable internal relocation was viable in the Applicant’s case.

20.  The officer did not accept the Applicant faced any real torture risk, persecution risk or CIDTP (BOR3 risk). He refused the Applicant’s claim with respect to those three applicable grounds.   

21.  Later, the Director wrote to the Applicant inviting him to submit additional facts for the consideration of the fourth applicable ground, i.e. life risk (BOR2 risk). The Applicant did not submit additional facts but only his Hong Kong marriage certificate.

22.  In the Director’s further decision dated 31 October 2016, the immigration officer considered that the Applicant failed to establish a personal and real risk of his rights under the HKBOR being violated (including right to life under BOR2). He refused the Applicant’s non-refoulement claim with respect to the fourth applicable ground: life risk (BOR2 risk).

TCAB/NCPO (the Board)

23.  The Adjudicator found many allegations of the Applicant’s lacked reliable evidence.

24.  The Adjudicator did not accept that state protection was not available to the Applicant. She found there were no substantial grounds for believing the Applicant would be subjected to any real risk that warranted non-refoulement protection.

25.  In light of her finding that there were no real risks, the Adjudicator did not think she need to discuss the issue of internal relocation.  

26.  On 16 November 2016, the Adjudicator refused the Applicant’s non-refoulement claim with respect to all the four applicable grounds: torture risk, persecution risk, CIDTP (BOR3 risk) and life risk (BOR2 risk).

Grounds for judicial review

27.  In Form 86, the Applicant complained the Director failed to properly consider the issue of state acquiescence (including the concept of extended state acquiescence); ignored the misconduct of the corrupt and incompetent Pakistan police; being wrong to decide there were reasonable state protection and alternative avenues to seek justice in Pakistan; failed to consider country-of-origin information (“COI”) favourable to his case; rendered unreasonable decisions; failed to understand the real situation in Pakistan; failed to take into account that he was not legally represented when the BOR2 issue was considered; failed to consider his mental stress; failed to attain the high standards of fairness.  

28.  The Applicant accused the Adjudicator failed to attain the high standards of fairness; rendered unreasonable decisions; failed to make sufficient inquiry; failed to advise the Applicant to obtain medical reports and evidence from Pakistan authorities regarding his injuries.

Court hearing

29.  In Form 86, the Applicant requested a hearing.  Hearing took place on 3 May 2018 and 30 May 2018.  The Applicant was in person. A Punjabi interpreter provided interpretation service in court.

30.  The Applicant said he was not good in English. A friend helped him to prepare Form 86 and the affirmation. He confirmed all the grounds of judicial review were in the documents. He said he was not given any chance to submit documents during the screening process but he did not say what the alleged documents were.

31.  The Applicant explained why he was late in applying for leave for judicial review. In Form 86, he said he had been detained at the Castle Peak Immigration Centre. He was not able to get assistance. He also said he had no knowledge of the procedure. In court, the Applicant submitted that he could not read or write and that was why it took so long for him to file the current application. The Applicant last claimed he had asthma and constant bleeding in his right eye. He had to go to hospital often though he need not be hospitalized.

Discussion

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

33.  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]

Delay in applying for relief

34.  The Court of Appeal in AW v Director of Immigration[6] stated: –

23. There are two relevant statutory provisions: Order 53 rule 4(1) and section 21K (6) of the High Court Ordinance, Cap 4.

24. Order 53 rule 4(1) is in these terms:

“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.”

25. Section 21K (6) provides as follows:

“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 -

(a) leave for the making of the application; or

(b) 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.”

26. The relationship between these provisions was explained by Ackner LJ in R v Stratford-on-Avon District Council, ex p Jackson [1985] 1 WLR 1319 at 1325F to G and approved of by Lord Goff of Chieveley in R v Dairy Tribunal, ex p Caswell [1990] 2 AC 738 at 746G.  Whenever there is a failure to act promptly or within three months, there is “undue delay”.  Even though the court may be satisfied in the light of all the circumstances there is good reason for that failure, nevertheless the delay, viewed objectively, remains “undue delay”.  The court therefore retains a discretion to refuse to grant leave for the making of the application or the relief sought on the substantive application on the grounds of undue delay, if it considers that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration.

27. In Re Thomas Lai [2014] 6 HKC 1, G Lam J considered the relevant authorities and stated the principles to be applied in an application to extend time for judicial review in §§43 to 45.  I take the following summary of these principles from the submission of Ms Sara Tong, who appeared for the Director:

(1) While in the public law field, it is essential that the courts should scrutinise with care any delay in making an application, the provisions of Order 53 rule 4(1) and section 21K (6) are not intended to be applied in a technical manner.  As long as no prejudice is caused, the courts will not rely on these provisions to deprive a litigant who has behaved sensibly and reasonably of relief to which he is otherwise entitled (R v Commissioner for Local Administration, ex p Croydon London Borough Council [1989] 1 All E R 1033 at 1046, per Woolf LJ).

(2) However, it must also be borne in mind that unless a disciplined approach to applications for judicial review out of time is taken, there is a real risk that public administration will be unduly disrupted and policies and decisions put into uncertainty for many months after they have been made and acted upon.

(3) What may constitute a good reason for extending time cannot be defined. In most cases, this would be a “multi-faceted question” the answer to which would depend on the circumstances of each case.  The following factors, which are not exhaustive, are likely to be of significance:

(i) Length of the delay: Obviously the longer the delay, the more cogent the reason has to be for extending time.

(ii) Explanation for the delay: While Order 53 rule 4(1) requires a good reason for extending time, rather than a good excuse for the delay, it is common sense that the presence of a credibly valid explanation for the delay will strengthen, and conversely the absence of any acceptable explanation will weaken, the applicant’s request for what is after all an indulgence to be granted to him in the court’s discretion.

(iii) Merits of the substantive application: Although merits of the challenge of the administrative decision are a significant matter to be taken into account, it is by no means the sole criterion.  Where an applicant is many months out of time, leave may be refused “however strong the complaint might otherwise be” (Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676 at 693B to C, per Litton NPJ).  An applicant who sleeps upon his rights may be barred from pursuing them in judicial review even though he may have a meritorious case (Law Chun Loy v Secretary for Justice, HCAL 13/2005, 26 October 2006, at §13, per Hartmann J).

(iv) Prejudice: The question of prejudice has two sides: the prejudice to the applicant if time is not extended, and the prejudice to the respondent and to public administration if a challenge is allowed to proceed out of time.

(v) Questions of general public importance: Whether the application raises questions of general public importance, and whether those questions are likely to have to be resolved by the courts in any event.

35.  The list of factors is not exhaustive; the consideration is “multi-faceted”. The overriding principle is of course one of fairness and in non-refoulement cases, high standards of fairness are demanded.

36.  The Applicant only took out the current application for leave for judicial review on 10 October 2017 while the Director's decision, the Director's further decision and the Board’s decision were respectively dated 19 August 2016, 31 October 2016 and 16 November 2016. That is to say, those decisions had been issued respectively for more than 13 months, 11 months and 10 months by the time the Applicant filed the current application for judicial review on 10 October 2017. However, the Applicant should not seek judicial review against the Director's decisions before the Board rendered its appeal decision on 16 November 2016. Therefore, the relevant date to be considered as the date when grounds for the application first arose in relation to all decisions would be 16 November 2016. Given there was a grace period of three months to file the application for leave for judicial review, the current application with respect to the Director's two decisions and the Board’s decision was all late by more than 7 months.

37.  The Applicant admitted he had received the notices of the various decisions though he was remanded in custody. (The Applicant came to Hong Kong on this occasion in June 2002. He was arrested by the police in July 2006. Since then, he was imprisoned and released a few times. The events from the Director's interview to the Board's decision took place between August - November 2016. During this period, the Applicant was detained in the Castle Peak Bay Immigration Centre. The Applicant said he was in custody there between July 2016 and 16 October 2017.)

38.  The Applicant admitted he got the notices of decisions while being detained. He said he could not read or write. He also submitted that he had no knowledge of the procedure. He alleged he was not able to get assistance while in custody.

39.  It is, however, to be noted that both Form 86 and the Applicant’s affirmation were written the date of 4 August 2017. Whoever prepared those documents must be acting on the Applicant’s instruction while the Applicant was still in custody. The documents were filed on 10 October 2017, also while the Applicant was still in custody. It indicates that despite the Applicant was being detained, he was able to obtain assistance from others to pursue his legal rights. His lateness in filing the current application for leave for judicial review was not cause by his being detained.

40.  In court, the Applicant claimed he had constant bleeding in his right eye and asthma. He had to go to hospital often. However, he need not be hospitalized. That means whatever illnesses the Applicant might have, they were not serious enough to hinder his function and his exercise of legal rights. 

41.  All added up, the Applicant was still short of reason for filing the current application late by more than 7 months.

42.  The provisions for time limit are not to be applied technically. Yet, the law must maintain a disciplined approach otherwise public administration would be thrown into uncertainty and chaos.

43.  The Applicant failed to put forward any reason for the long and undue delay. There is also no merit in his application (see paragraphs 44-45 below). His late application for leave for judicial review should not be allowed.

Merits of application

44.  The Applicant had laid a barrage of complaints against the Director and the Adjudicator. I have reviewed the Director's decision plus further decision and the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. I find none of the Applicant's complaints is substantiated.

45.  In my judgement, the Director and the Adjudicator had proper basis for their findings, conclusions and decisions which were not Wednesbury unreasonable. They made no errors of law and there was no procedural unfairness. Each had engaged in 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 reports of the Director and the Adjudicator respectively showed that they were acquainted with the facts and the law. They gave balanced consideration of COI relevant to the Applicant’s claim. They considered the Applicant's case carefully and applied the law correctly. They were entitled to render those findings, conclusions and decisions which were all reasonable. The Director and the Adjudicator had achieved the high standards of fairness required of the Applicant’s non-refoulement claim.

Conclusion

46.  The Applicant's complaints are not reasonably arguable either against the Director or the Board. He has no realistic prospects 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