QASIM ALI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL199/2018

[2018] HKCFI 2337

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 199 of 2018

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 submission by the Applicant in open court

Leave to apply for judicial review be refused.  

Observations for the Applicant

Background

1.  The Applicant is a national of Pakistan.  He is now aged 25 (DOB: 1 January 1993).

2.  The Applicant claimed he would be harmed or killed by his uncle Liaqat and Liaqat’s two sons (Ilyas and Razaq) because of a land dispute. Liaqat, Ilyas and Razaq were all supporters of the Pakistan Muslim League [“PML(N)”]. Ilyas was a PML(N) member and the Administrator of Minawah where the Applicant.

3.  The Applicant said his grandfather had four sons (including the Applicant's father and Liaqat). The grandfather let each son take part of his land. When he died in 2009, there was a dispute over the distribution of land. The argument developed into a fight between the Applicant's father and Liaqat. Liaqat injured the Applicant and the Applicant's father and brother Azam.

4.  The Applicant's father and brother reported the matter to the police. A few days later, some policemen came to make enquiry. However, they took no action against Liaqat.

5.  On two to three occasions, the Applicant had dispute with Ilyas. Ilyas threatened to kill the Applicant with a pistol.

6.  Later, Ilyas came with some men. They were armed with guns. Ilyas fired into the air to frighten the Applicant. The Applicant was injured in the ensuing fight. Azam was shot in the hand. Some villagers came. The assailants then left.

7.  The Applicant reported the matter to the police. They took statements from the Applicant and Azam. Later, the police arrested Razaq (Ilyas’s brother). The Applicant believed the police arrested Razaq instead of Ilyas because Ilyas was the Administrator of Minawah.

8.  Razaq was soon released and Ilyas kept on making threatening calls to the Applicant.

9.  The Applicant then joined the Pakistan Tehreek-e-Insaf (“PTI”), which was the opposition party to PML(N). He hoped PTI could help him.

10.  In August 2011, while the Applicant was attending a PTI rally Razaq came with some PML(N) people to cause disruption. A fight broke out. Razaq and his men were beaten up. The Applicant managed to escape. He subsequently got threatening calls from Ilyas. The Applicant felt Ilyas would seek revenge for Razaq.

11.  Ten odd days later, two men opened fire at the Applicant and some PTI members in the street. The Applicant was not injured but a PTI member was shot and died later. The Applicant knew the shooting was instigated by Ilyas because he received a phone call from Ilyas. Ilyas said the Applicant would not be that lucky next time.

12.  The Applicant complained to the police. Ilyas was arrested but soon granted bail.

13.  The Applicant moved to another place to dodge his enemies. He later turned up in the court to testify against Ilyas for the shooting case. Ilyas jumped bail. He then lost his PML(N) membership and ceased to be the Administrator of Minawah. However, he still had the support of many PML(N) members. The Applicant said the police would still listen to Ilyas because the latter had connection with people in power. The Applicant did not believe the police could protect him.

14.  Between 2012 and mid-2015, the Applicant stayed in different places to avoid his enemies. Finally, he left Pakistan for China on 12 May 2015. Three days later, he sneaked into Hong Kong. He was arrested by the police a month later on 26 June 2015 and subsequently sought non-refoulement protection.

15.  The Applicant last contacted his family in July 2017. He learnt his father had become sick due to tension and his brother had left Minawah after a fight with Ilyas.

16.  The Applicant did not think the Pakistan authorities would protect him. He also said internal relocation was not viable.

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

18.  On 9 February 2018, the Applicant applied for judicial review.

Timeline

19.  Things happened in this order: –

2015-5-12	The Applicant left Pakistan for China.
2015-5-15	The Applicant entered Hong Kong illegally from China.
2015-6-26	The Applicant was arrested by the police for illegal remaining.
2015-6-28	The Applicant filed a non-refoulement claim.
2017-7-21	The Director refused the Applicant’s claim with respect to all the four applicable grounds:(i) torture risk, (ii) persecution risk, (iii) BOR3 risk and (iv) BOR2 risk. [“the Director’s decision”]
2017-8-15	The Applicant filed appeal to the Board (the 14-day period ended on 4 August 2017).
2017-12-15	The Board refused the Applicant’s late filing of appeal. [“the Board’s decision”]
2018-2-9	The Applicant applied for leave for judicial review.

Respondent/Interested party

20.  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 case on a rehearing basis.

21.  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.  However, he also listed the Director's decision as a subject matter for seeking relief.

22.  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] The Applicant cannot seek leave for judicial review against the Director's decision. Therefore, I shall deal with his application in relation to the Board's decision only.

The Director's decision

23.  The Director did not accept the Applicant faced any risk that warranted non-refoulement protection. He also considered reasonable state protection and internal relocation were available to the Applicant in any event. On 21 July 2017, the Director refused the Applicant’s non-refoulement claim with respect to all the four applicable grounds: torture risk, persecution risk, BOR2 risk and BOR3 risk.

The Board's decision

24.  The Director's decision was sent to the Applicant by mail c/o the Duty Lawyer Service (“DLS”) on 21 July 2017. The deadline for appeal to the Board was 14 days later, i.e. 4 August 2017. However, the Applicant’s notice of appeal (“NOA”) was dated 10 August 2017. The computerized post chop was dated 14 August 2017 and the Board received the NOA on the next day, i.e. 15 August 2017.

25.  The Applicant filled in Section 2 of the NOA to state his grounds of appeal in his own language. He stated he was in jail. He did not agree to the Director's decision and wished his case could be reviewed as there was still danger in Pakistan.

26.  Section 5 of the NOA was title “Application for Late Filing of Notice of Appeal/Petition”. It had a printed explanation there which read “A person who wishes to appeal/petition against the decision of the immigration officer must file this Notice within 14 days after notice of such decision is given to him. If you are filing this Notice after the expiry of the aforesaid 14-day period, you must include below a statement of the reasons for late filing. You must also submit relevant documentary evidence in support of such reasons.” The Applicant did not write anything in Section 5 of the NOA.

27.  On 25 August 2017, the Board received a letter dated 23 August 2017 from the Applicant. It said “It is my respectful submission to you that I do not know how to read and write because of that I got late for filling appeal that I was supposed to file on 10-08-2017, over here there is no educated person, who could help me. Please help me out and my case appeal be accepted.”

28.  The Adjudicator considered there was a strict regime governing late filing of appeal to the Board and the delay in the instant case was a serious and significant failure to comply with the rules. The Applicant had not given a good reason for the delay. The Adjudicator found no special substances that would make it unjust to reject the Applicant’s late filing of appeal.

Grounds for judicial review

29.  In his affirmation, the Applicant complained he was not given legal representation for appeal to the Board. He said he was detained in prison when he received the Director's decision. He requested the Duty Lawyer Service to help him to appeal but his request was refused. The Applicant said he was illiterate and there was no one to help him.

30.  The Applicant also complained he was not given a translation of his non-refoulement form (“NCF”). He had no means to find out if interpreter had translated the basis of his claim properly. He complained there was lack of translation/interpretation service.

31.  The Applicant further complained the Board rejected his appeal without any hearing.

Court hearing

32.  In Form 86, the Applicant requested a hearing.  The hearing took place on 15 June 2018. The Applicant was in person. An Urdu interpreter provided service in court.

33.  The Applicant confirmed all the grounds of judicial review were in his affirmation.

34.  The Applicant said he was detained in prison between January and November 2017. He received the Director's decision in prison in July 2017 and filed his appeal to the Board in August 2017. The Applicant said he was not educated and he could not find anyone to help him in jail.

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’.[6]  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.” [7].

37.  The Adjudicator rejected the Applicant's late filing of appeal. He had not considered any merits of the Applicant's case. The Adjudicator indeed need not and should not consider the merits because of the statutory requirement relating to late filing of appeal.

Late filing of appeal to the Board

38.  s. 37ZS (1) of the same ordinance states: –

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

39.  s. 37ZT of the Immigration Ordinance, Cap.115 provides for late filing of notice of appeal to the Board: –

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

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

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

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

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

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

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

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

40.  The Director’s decision dated 21 July 2017 was given to the Applicant c/o the DLS which represented him. According to the DLS’s reply to the court’s enquiry, the assigned duty lawyer served the Director's decision on the Applicant on 27 July 2017. The lawyer had explained to the Applicant that there were no grounds of appeal but he could appeal himself if he decided to do so. The lawyer would certainly have explained to the Applicant the 14-day requirement counting after 21 July 2017.

41.  Although the Applicant received the Director's decision only six days after 21 July 2017, his complaint was not that the DLS served the Director's decision late on him. He only complained there was nobody to help him in prison to file the appeal. He said he was not educated and the DLS refused to offer assistance further.[8]

42.  The Applicant complained that “In prison, everybody live a different life which is under a great stress so it is almost impossible that a normal person can make a proper arrangement for his legal documents”.[9]  I cannot agree. The fact was the Applicant still managed to file his appeal from the prison in August 2017. He was allowed to write on the NOA in his own language and he actually stated in his own language such grounds of appeal in Section 2 of the NOA.

43.  Even if the Applicant did have any difficulty in prison which might cause his appeal late, he should state that clearly in Section 5 of the NOA to let the Adjudicator know. Then the Adjudicator could assess whether the Applicant had good reason to explain for his lateness.

44.  In the present case, the Applicant was already late when he dated the NOA as 10 August 2017. He was obliged to provide reason for the lateness in Section 5 of the NOA but he did not.

45.  The Applicant only subsequently sent a letter dated 23 August 2017 to the Board, saying he was illiterate and there was no one to help him.

46.  The Adjudicator considered the regime governing late filing of appeal was a strict one.[10]  He was right. According to s. 37ZT(2) of Cap. 115, the Board may only take account of the statement of reasons stated in the application for late filing of the notice of appeal and any accompanying documentary evidence relied on in support of those reasons and any other relevant matters of fact within the knowledge of the Board.

47.  The Adjudicator was aware he had to consider the requirements set down by case law.[11] He had to decide if the lateness was serious or significant; whether the Applicant could give a good reason for the breach; and to evaluate all the circumstances of the case.

48.  The Adjudicator knew the Applicant was in prison and uneducated. Having considered all the circumstances of the case, the Adjudicator concluded the delay in the instant case was significant and serious; the Applicant’s explanation was not a good reason for the delay; and there were no special circumstances to make it unjust to refuse the Applicant's late filing of appeal. He thus rejected the Applicant's late filing of appeal.

49.  I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. The Adjudicator was entitled to come to his decision, which was not Wednesbury unreasonable. He made no errors of law and there was no procedural unfairness. The Adjudicator had achieved the high standards of fairness required of the Applicant’s non-refoulement claim.

Conclusion

50.  The Applicant's complaints are not reasonably arguable. 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