SHAIKH ABDUL SAMAD v. DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL359/2018

[2018] HKCFI 1778

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 359 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 35 (DOB: 21 January 1983). 

2.  The Applicant claimed that he would be harmed or killed by Saghir and his group of gangsters because he refused to join their unlawful party, the Muttahida Qaumi Movement  (“MQM”). Saghir was one of the leaders in MQM.

3.  In 2002, some MQM people invited the Applicant to join them but he refused. Those people then threatened the Applicant. The threats became more often and intensive in 2007/2008.

4.  In late 2008, Saghir and his associates came to the Applicant’s shop. They told the Applicant that if he refused to join them, he could not do business and they would harm him too. They left after uttering such threats.

5.  Two to three weeks later, Saghir and his people came to make the same demand. The Applicant again refused to join them. Those people then assaulted the Applicant and vandalized his shop. They took money and valuable properties from the shop.

6.  The Applicant told his experience to a local councillor. The councillor advised the Applicant to ignore the matter because MQM was the ruling party in the region. The councillor said the police would not offer assistance to the Applicant as they were submissive to MQM. The Applicant, therefore, did not seek police assistance.

7.  In MQM, there was a gangster called Nadeem. In early 2009, Nadeem and his people came to the Applicant’s shop to force the Applicant to join MQM. The Applicant refused and was beaten up. Those people fired shots into the air and even pointed a pistol at the Applicant’s head threatening to kill him. They repeated that the Applicant would be killed if he did not join MQM. They took all the valuable properties from the shop before they left.

8.  The Applicant went to the police this time but the police refused to accept his complaint.  They asked him to report the matter to the police station of another area. The Applicant went to the other police station. Yet, the police there also refused to handle his complaint because they considered MQM was a very dangerous party. The Applicant went back to the councillor for advice. The councillor told him to resettle elsewhere in Pakistan.

9.  The Applicant dodged his enemies for a few months in his hometown before he moved to another city.

10.  On the advice of a friend, the Applicant engaged a lawyer to file lawsuits against MQM. The MQM people were aware of the Applicant's action and sent people searching for him. Saghir and Nadeem made threatening phone calls to the Applicant. They also threatened the Applicant’s lawyer that he should not assist the Applicant. They forced the lawyer to disclose the Applicant’s whereabouts. The lawyer refused to divulge but he did stop acting for the Applicant in the legal proceedings against MQM.

11.  The Applicant believed his enemies would track him down sooner or later. He started to make arrangement to leave the country. On 10 January 2010, he left Pakistan for China. He later entered Hong Kong illegally on 6 March 2010. The next day, he was arrested by the police. He lodged a non-refoulement claim on 9 March 2010.

12.  The Applicant learnt from his neighbours in Pakistan that the MQM people had been searching for him. Those people threatened to take action against him should he return to Pakistan. MQM had also set up an office near the Applicant’s home. The Applicant felt his situation was very vulnerable. He said his enemies were powerful. The Pakistan government could not help him.

13.  The Applicant claimed he had no means to live elsewhere in Pakistan so internal relocation was not viable.

14.  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 (CIDTP risk or BOR3 risk)[3]  and (iv) risk of violation of the right to life (BOR2 risk)[4].

15.  On 6 March 2018, the Applicant applied for leave for judicial review.

Chronology of events

16.  Things happened in this order: –

2010-1-10	The Applicant left Pakistan for China.
2010-3-6	The Applicant entered Hong Kong from China illegally.
2010-3-7	The Applicant was arrested by the police for illegal remaining.
2010-3-9	The Applicant raised a torture claim.
2016-4-6	The Director interviewed the Applicant.
2016-5-13	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”]
2017-2-17	The Director invited the Applicant to submit additional facts for the consideration of BOR2 risk.
2017-3-3	The Applicant failed to submit additional facts by the deadline and thereafter.
2017-3-10	The Director refused the Applicant’s claim with respect to the fourth applicable ground: life risk (BOR2 risk). [“the Director's further decision”]
2017-4-12	The Applicant appeared before the Board for appeal.
2017-6-9	The Adjudicator refused Applicant’s claim with respect to all the four applicable grounds. [“the Board's decision”]
2018-3-6	The Applicant applied for leave for judicial review.

Respondents

17.  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.

18.  In Form 86 (the notice of application for leave to apply for judicial review) [Folio 1], the Applicant named the Director and the Adjudicator as respondents.

19.  The Adjudicator did not act in his personal capacity. He represented the Board. In court, the Applicant agreed 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)

20.  In the Director’s decision dated 13 May 2016, the immigration officer did not make specific findings on the Applicant’s credibility. However, even on the Applicant's own account of events the officer did not find the Applicant had been inflicted with ill-treatment to a minimum level of severity. The Applicant’s perceived risk was localised. The officer also found his alleged risk was not instigated or consented by the state or officials. There was no evidence of state acquiescence.

21.  The officer was aware there were reports of political violence, human rights abuse and police corruption in Pakistan. However, there was also objective country-of-origin information (“COI”) showing the government had taken steps to monitor the police and to improve the effectiveness. The officer was satisfied reasonable state protection was available to the Applicant. Internal relocation was also viable.

22.  The officer did not accept the Applicant would face torture risk, persecution risk and CIDTP risk (BOR3 risk). He refused the Applicant’s claim with respect to those three applicable grounds.

23.  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). However, the Applicant did not respond by the deadline or thereafter.

24.  In the Director’s further decision dated 10 March 2017, the immigration officer considered that the Applicant failed to establish a personal and real risk of his rights under HKBOR being violated (including the 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)

25.  The Adjudicator found there were number of implausible, inconsistent and exaggerated features in the Applicant’s allegations. He found the Applicant had fabricated his claim.

26.  The Adjudicator found the Applicant failed to establish any risk that warranted non-refoulement protection. He refused the Applicant’s claim with respect to all the four applicable grounds.

Grounds for judicial review

27.  In Form 86, the Applicant complained the Director failed to properly consider state protection and the extended concept of state acquiescence; failed to properly consider COI including police corruption and ineffectiveness in Pakistan; failed to make sufficient enquiry; failed to advise the Applicant to obtain medical reports and/or evidence from Pakistan authorities when deciding on the seriousness of the injuries suffered by the Applicant.

28.  The Applicant accused the Adjudicator failed to attain high standards of fairness required; failed to appreciate the Applicant was not legally represented; failed to notice the errors committed by the Director and erred in a similar way as the Director did.

Court hearing

29.  In Form 86, the Applicant requested a hearing.  The hearing took place on 4 June 2018 and 7 June 2018. The Applicant was in person. An Urdu interpreter provided interpretation service in court.

30.  The Applicant admitted he got the Board’s decision in June or July 2017. When asked why he filed the application for leave for judicial review late in March 2018, the Applicant said he did not know there was a three-month limitation. He did not know he could file such application until his friends told him in early March 2018. He immediately processed the application. A friend helped him to prepare the documents. The Applicant confirmed all the grounds of judicial review were in the documents.

31.  The Applicant also said he had a tumour in his spine. He felt numb on the right side and could not sleep well without taking medication. He could not stand or walk long and had difficulty in writing too. However, the Applicant confirmed he had not been immobilised or hospitalised. He could go to the mosque to pray once a week and went out to buy food once a week. He could also go to report to the Immigration Department every 14 days.

32.  The Applicant confirmed he had submitted all to the Director and the Board for their consideration of his non-refoulement claim.

Discussion

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

34.  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]

Late application for leave for judicial review

35.  Order 53, rule 4 of the Rules of the High Court states: –

(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 judgement, order, conviction or other proceeding, the date when grounds for the application first arose shall be taken to be the date of that judgement, order, conviction or proceeding.

36.  In the present case, the Director's decision, the Director’s further decision and the Board’s decision were respectively dated 13 May 2016, 10 March 2017 and 9 June 2017.

37.  The Applicant should not seek judicial review against the Director's decision and further decision before the Board rendered its appeal decision on 9 June 2017. Therefore, the relevant date to be considered as when grounds for the application first arose against the Director’s two decisions and the Board’s decision should all be 9 June 2017.

38.  The Applicant only took out the current application on 6 March 2018. That was almost nine months after 9 June 2017. Given there was a grace period of three months for the filing, the current application was in fact almost 6 months late.

Legal principles for extending time

39.  In CACV 63/2015 AW v Director of Immigration, the Court of Appeal 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.

40.  The Applicant admitted he received the Adjudicator’s decision in June or July 2017. He did not know he could apply for judicial review and he did not know he had to do it within three months. The Applicant claimed he only knew from his friends in early March 2018 that he could apply for judicial review and he immediately processed it. Ignorance, however, was not a good reason for an undue delay of nearly six months.

41.  The Applicant also said he had been suffering from a giant cell tumour in the C2 section of his spinal cord. He felt numb in his head, neck and the right side of his body. However, he was not hospitalised between June 2017 and March 2018. Nor was he immobilized. He could still go to the Mosque once a week. He also went out to buy food once a week. He could also go to report to the Immigration Department every 14 days. Therefore, the Applicant's ill-health could not mitigate his delay.

42.  There was no justification for the Applicant's substantial undue delay. His application for leave for judicial review against the Director's decision plus further decision and the Board’s decision was also without merits (see paragraph 43 below). Therefore, his late application should not be allowed.

Merits

43.  The Applicant's complaints against the Director and the Adjudicator are vague. I have reviewed the Director's decisions and the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. I am satisfied 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. There is no substance in the Applicant’s complaints against the Director or the Adjudicator, who had each 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 they were acquainted with the facts and applied the law correctly. They had considered the Applicant's case carefully. 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.

Conclusion

44.  The Applicant's complaints are not reasonably arguable against either the Director or the Board. He has no reasonable prospects of success in the sought judicial review. His application is also late by almost six months without justification. 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