AMZ v. TORTURE CLAIMS APPEAL BOARD

HCAL 607/2017

[2018] HKCFI 700

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 607 of 2017

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

Following:

1. The applicant shall be named as “AMZ” instead of his full name in these proceedings.

2. Extension of time for AMZ to apply for judicial review refused with no order as to costs.

Observations

1.  AMZ is a Pakistani national born and raised in Gujranwala, Pakistan. AMZ claimed to have departed Pakistan on 27 June 2014 and arrived at Guangzhou, China on 28 June 2014. On 4 July 2014, he was arrested by the Hong Kong police at Caritas Medical Centre for remaining illegally in Hong Kong. Upon police enquiries, AMZ claimed he sneaked into Hong Kong by boat on 3 July 2014. On 6 July, AMZ was transferred to the Immigration Department (“ImmD”) for further investigation. On 12 August 2014, AMZ applied for non-refoulement protection. On 3 September 2014, AMZ was released on recognizance. AMZ submitted a non-refoulement claim form (“NCF”) dated 22 January 2016, and attended screening interview on 5 April 2016 (“Interview”). At that stage he was assisted by duty lawyer from the Duty Lawyer Service (“DLS”).

2.  AMZ was assessed on the applicable grounds of torture risk, BOR3 risk and persecution risk (as referred to in paragraph 25 below). On 15 April 2016, the Director of Immigration (“DOI”) dismissed AMZ’s claim for non-refoulement protection (“DOI Decision”).

3.  On 23 May 2016, AMZ appealed to the Torture Claims Appeal Board (“Board”). By that time, he was no longer legally represented. Pursuant to section 37ZS of the Immigration Ordinance Cap 115 (“IO”), if AMZ wished to appeal against the DOI Decision, he must file his appeal/petition within 14 days of the DOI Decision which fell on 3 May 2016. AMZ’s appeal was out of time for 20 days. On 26 September 2016, the Adjudicator declined to grant extension of time for AMZ to file his appeal, and dismissed AMZ’s application for late filing of such appeal (“Adjudicator Decision”).

4.  By letter dated 9 December 2016, DOI gave AMZ an opportunity to provide further additional materials or facts on other absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance Cap 383 (“BORO”), particularly under article 2 of the Hong Kong Bill of Rights (“BOR”) (“BOR2 risk”). The DOI did not receive any reply from AMZ. By letter dated 29 December 2016 to AMZ, the DOI concluded AMZ failed to establish a personal and real BOR2 risk if he was to return to Pakistan (“DOI Further Decision”).

5.  On 11 September 2017, AMZ filed Notice of Application for Leave to Apply for Judicial Review (“Form 86”) against the “Decision of …… [DOI]” and Adjudicator Decision. However, AMZ only named the Board as the respondent, and the DOI rendered both the DOI Decision and DOI Further Decision. For the present purpose, I shall assume Form 86 was against any and all of the DOI Decision, DOI Further Decision and Adjudicator Decision. By Form 86, AMZ sought an order for certiorari to bring up and quash such decisions. Form 86 was supported by AMZ’s affirmation filed on 11 September 2017 in which AMZ sought non-refoulement protection in Hong Kong and stated “I want to fight them in my right” (“AMZ Aff”).

6.  It is obvious Form 86 was not filed within 3 months of the Adjudicator Decision. Section 21K(6) of the High Court Ordinance Cap 4 (“HCO”) 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; and

(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.”

Order 53 rule 4(1) of the Rules of the High Court (“RHC”) provides that:

“An application for leave to apply for judicial review shall be made promptly and in any event within 3 months from the date when the 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.”

7.  In the circumstances, AMZ required extension of time to apply for leave to apply for judicial review. AMZ did not seek any oral hearing of his application. I have considered with rigorous examination and anxious scrutiny the papers for AMZ’s application. I consider it to appropriate to deal with AMZ’s application for leave to apply for judicial review together with the issue of extension of time to apply for such leave on paper on rolled up basis.

AMZ’s claim

8.  AMZ received 10 years’ formal education in Pakistan attaining Class 10 in 2009. He is single, and had no job in Pakistan. At the time of the Adjudicator Decision, AMZ’s father (who is also an applicant for non-refoulement protection but who could not be positively identified from ImmD’s records, “Father”).[1] AMZ’s mother and 2 younger brothers were in Pakistan, but he reported to ImmD that he had 4 siblings as he included his adoptive brother and sister. AMZ had lost contact with his adoptive siblings for at least 2 years. AMZ was not convicted of any crime outside Hong Kong.

9.  AMZ claimed the Father was a chief supporter of the Pakistani Muslim League (N) (“PMLN”) in their district. The Father catered to any need of and also mustered support for the party. AMZ claimed the Father had close connection with senior leaders and prominent figures of PMLN whose names were unknown to AMZ, but AMZ accompanied the Father to rallies of PMLN in Gujranwala on various occasions.

10.  At the Interview, AMZ said he joined the youth wing of PMLN in 2010 when he was 16 years old, but later changed to say he only joined PMLN’s rallies at that time and was given a membership card after 2 to 2½ years, and still later he said PMLN was founded in 1996 or 1997. Although AMZ did not know how many seats PMLN had in the National Assembly (“NA”) when he allegedly joined in 2010, PMLN held 96 or 97 seats in the NA at the time of AMZ’s departure from Pakistan in June 2014. AMZ explained that the youth wing and mother party of PMLN shared the same name (ie PMLN), and were led by the same leaders of the mother party. AMZ explained MPA was “the official ruling in a cluster of towns. There are four MPAs and a MNA in every Tchsil”.[2]

11.  There was political rivalry between PMLN and Pakistan Muslim League (Q) (“PMLQ”). AMZ claimed PMLQ supporters held the Father accountable when a general councillor from PMLQ died in a clash with the Father, but AMZ later clarified he could not remember when the deceased general councillor was elected in his area. Consequently, the Father fled Pakistan for Hong Kong in/about 2005/2006.

12.  At the Interview, AMZ added that a PMLQ leader had gone to his house to ask for the Father’s whereabouts after the Father had left. That PMLQ leader tried to break the door, used bad words on AMZ, and harassed AMZ’s paternal grandmother as she went out to do her shopping. AMZ claimed his paternal grandmother reported to the police 2-3 times (but AMZ could not remember the dates), and although she was assured each time that action would be taken, no action was actually taken due to connections between the PMLQ leaders with the police officers.

13.  AMZ claimed at that time he had no contact with the Father, and his paternal grandmother supported the family in the Father’s absence. In/about 2012, the Father returned to Pakistan to attend the funeral of AMZ’s paternal grandmother (which was a traditional rite). AMZ did not know whether the Father contacted people from PMLN after his return. But a month later, the Father told the family his life was under threat and he would go to Quetta. At the Interview, AMZ added that people from PMLQ looked for the Father more often after they became aware of his return. Before the Father left for Quetta, he asked AMZ and other family members to seek refuge with AMZ’s maternal grandmother at Meeran Di Koyee, Lahore. But AMZ felt safe to stay with a paternal uncle in a nearby village, so he did not move to Lahore with his mother and siblings.

14.  AMZ claimed that one evening in 2012 4 men broke into his uncle’s house and took him away by force. They questioned him on the Father’s whereabouts in the getaway van, so he believed they were supporters of PMLQ. Although those men threatened to kill AMZ for not disclosing the Father’s whereabouts, AMZ did not say anything to them. AMZ was driven to a house amid farmlands, and was locked in a windowless room. The men continuously questioned AMZ about the Father, slapped AMZ, whipped his body several times with a bunch of electrical wires, and continuously hit his right leg with metal rods. They left the room after 30 minutes. AMZ claimed that at noon on the following day, 1 of the men returned and left him some water, chapatti, and bad quality curry that was barely enough for him. AMZ’s screams for help were unheard as the houses were few and far apart. At/about noon on the 3^rd day, AMZ escaped via an open door when a cleaner came to do cleaning. He crawled to the main road, and a passing driver drove him to his paternal uncle’s house. AMZ’s paternal uncle took him to a bonesetter to treat his bruises, swellings and fractured right lower leg. AMZ then returned to his paternal uncle’s house, and had bed rest. He recovered fully in a few months, but still felt painful in the afflicted leg which had a 2-inch scar on the left side.

15.  AMZ claimed that during his convalescence, his paternal uncle filed a complaint to the People’s Colony Police Station on his behalf. Due to lack of evidence, “the complaint was not handled by the police”. With the advice and help of his paternal uncle, AMZ joined his mother and siblings in Lahore few days later. During his stay in Lahore, AMZ and his family members contacted relatives in Quetta to check on the Father’s condition. Then 1 day in 2013, a relative in Quetta informed AMZ the Father was beaten up by some unknown people and was admitted to hospital. But at the Interview, AMZ said he learned of the attack on and hospitalisation of the Father about 1 to 1½ weeks after he left for Quetta, and due to his and his paternal uncle’s urgency in leaving for Quetta to check on the Father’s condition, he did not pursue the matter of his kidnap with higher police authorities or seek redress by petition to the courts.

16.  AMZ claimed that when he saw the Father at the hospital in Quetta, the Father told AMZ he was followed by a group of people and beaten up with sticks and poles. As a result of the beating, the Father was hospitalised for 3-4 months, and had several operations on his fractured hip and right lower leg. Despite such treatment, the Father’s leg was crippled, and he became wheelchair-bound.

17.  AMZ did not know whether the Father reported the attack to the authorities. AMZ claimed that after the Father was discharged from hospital, he took the Father to Lahore to reunite with the rest of the family. But at the Interview, AMZ changed to say that only his mother and siblings stayed with his maternal grandmother in Lahore, and he and the Father stayed in different locations close to the house of his maternal grandmother in Lahore. In 2013-2014, when AMZ was in Lahore with his family, his paternal uncle told the Father the same group of people from PMLQ often visited his house in Gujranwala and asked about the Father. AMZ said during his year-long stay in Lahore, he was in hiding as people from PMLQ resumed their search for the Father after they came to know he was still alive. The Father told AMZ he was in constant fear in Pakistan, and the authorities were unable to protect the family no matter where he stayed as people from PMLQ were influential over the police. But AMZ later clarified that in 2012 PPP (ie Pakistan Peoples Party but AMZ did not know such full name) was the ruling party in Pakistan, but PMLQ was still the strongest party.

18.  AMZ claimed his paternal uncle advised him to leave Pakistan with the Father as he (being the eldest son in the family) would be a target of the people from PMLQ after the Father. Although the Father asked AMZ’s mother to leave Pakistan with him, she chose to stay behind to look after AMZ’s younger brothers. With help from some of the Father’s friends, AMZ and the Father made arrangements to go to Hong Kong because the Father said it would be safe there. At first AMZ explained he made a passport application in September 2013 but due to his agent’s delay in handling the relevant procedure his departure was deferred to June 2014. But AMZ later clarified he did not have any specific departure plan when he applied for his passport in September 2013.

19.  AMZ claimed he and the Father travelled from their hiding places to the airport in a vehicle covered on all sides in order to avoid detection by people from PMLQ.  Although AMZ did not encounter any big problem in departing Pakistan for China on 27 June 2014, officials at the airport in Lahore held them up for a while to query the Father’s visit to China on a wheelchair. But they were allowed to depart without further hindrance upon AMZ’s insistence.

20.  AMZ claimed that after landing in Guangzhou, China, he and the Father journeyed to Shenzhen by taxi, and then sneaked into Hong Kong by boat on 3 July 2014. After they landed in Hong Kong, the Father’s health condition deteriorated before they had a chance to apply for non-refoulement protection, AMZ called an ambulance and rushed the Father to hospital for treatment. As they failed to produce identification papers, the hospital summonsed the police. AMZ surrendered to the police. In the meantime, the Father was scheduled to have an operation.

21.  AMZ claimed that since the Father was a political member of PMLN and since people from the rival party PMLQ broke the Father’s legs and threatened to kill him and the Father, he would be at risk of harm by people from PMLQ if he were refouled to Pakistan as they wanted him to reveal the Father’s whereabouts.

22.  AMZ claimed that although PMLN was the ruling party at the time of the DOI Decision, the area he came from was dominated by PMLQ, and he learned from the Father and his PMLN friends that the PMLQ people in their area were “aiders of criminals and very dangerous whereas local authorities are predominantly controlled by PMLQ”. At the Interview, AMZ said CSH (a gangster involved in extortion and had control over the whole of Pakistan) was the leader of PMLQ in Gujranwala and Lahore. When it was pointed out to AMZ that PMLN won all 14 constituencies in Gujranwala and 22 out of 25 constituencies in Lahore in the 2013 general election, AMZ insisted PMLQ had control over those areas despite its defeat in the election, and he maintained the police in these 2 areas would be unable to help him despite PMLN’s status as the ruling party because some police officers were close to the PMLQ people. AMZ claimed the PMLQ people might know if one complained against them to the police and the complainant would then be beaten by them.

23.  AMZ did not believe relocation to elsewhere in Punjab (other than Gujranwala and Lahore) could save him from the troubles caused by the PMLQ people even though PMLN won 313 seats (out of a total of 406 seats) in the Punjab Assembly in the 2013 general election whereas PMLQ was able to seize only 8 seats.

24.  AMZ did not have direct contact with his mother and siblings in Pakistan, but learned from his last contact with his paternal uncle in mid-2015 that they were fine. But the people from PMLQ went to his paternal uncle’s house a few times and demanded to know AMZ’s and the Father’s whereabouts. Since that last contact, the telephone line of AMZ’s paternal uncle became inoperative, and AMZ feared “he must have been harmed or even killed by people from PMLQ”.

DOI Decision

25.  The DOI analysed AMZ’s claim under all applicable grounds:

(a)   risk of torture as defined in Part VIIC of the IO (“torture risk”);

(b)   risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under article 3 of BOR (“BOR3”) (“BOR3 risk”);

(c)   risk of persecution by reference to the non-refoulement principles under Article 33 of the 1951 Convention relating to the Status of Refugees (“Convention”) (“persecution risk”).

26.  The DOI Decision noted AMZ claimed he was at risk of harm from PMLQ as they wanted him to reveal the Father’s whereabouts, but for reasons set out in the DOI Decision the DOI did not accept AMZ’s claimed risk of harm by the people from PMLQ was genuine and substantial:

(1)   The DOI considered AMZ was inconsistent as to his affiliation with PMLN. In the NCF he stated his only connection with PMLN was through the Father, who was a chief supporter of PMLN in their area (or a member according to the Written Signification), but in the Interview AMZ changed to say he joined the youth wing when he was 16 years old, and later changed to say he became a member when he was 18 years old. It was said AMZ was vague on his and the Father’s support of PMLN, and apart from the name of the party AMZ was wrong on everything about PMLN. Further, AMZ had little knowledge on politics/elections in Pakistan, and was unable to substantiate his claimed affiliation with PMLN with any evidence. The DOI did not accept AMZ would be at risk of harm by the people from PMLQ for his “membership” in PMLN.

(2)   AMZ claimed he was at risk of harm by the people from PMLQ as they wanted to know the Father’s whereabouts so as to avenge the death of a local leader. The NCF suggested AMZ’s life in Pakistan (in the absence of the Father) was uneventful, but at the Interview AMZ said his family was constantly harassed by the people from PMLQ. AMZ claimed there was no police action seen even though upon receipt of reports from AMZ’s paternal grandmother the police promised to take action against the people from PMLQ.

But even though PMLN was the ruling party in Punjab since 2008 (ruling party in Pakistan since 2013), AMZ and his family members did not pursue their problems with the police authorities. The DOI was of the view that if what AMZ lately claimed was true, it was unconvincing that the Father would return to Pakistan under grave threats to his life to attend the funeral of AMZ’s paternal grandmother in 2012. The DOI did not accept the alleged harassment constituted any real threat to AMZ’s life or that reasonable protection was unavailable to him in Pakistan.

(3)   The DOI took the view that AMZ’s alleged kidnap in 2012 by the people from PMLQ was vague and unsubstantiated with any evidence. The DOI concluded the belated report to the police by AMZ’s paternal uncle was incomprehensible. AMZ’s vague and at times conflicting accounts of the attack on the Father by unknown people, his trip to Quetta on becoming aware of the Father’s hospitalisation (even though AMZ was under bed rest), and his reunion with family members in Lahore after the Father’s discharge from hospitalisation were doubtful. The DOI said AMZ’s assertions that “PMLQ was controlling Gujranwala and Lahore despite its defeat in elections since 2008 and progressive marginalisation in Pakistan and its local leader’s countrywide control on gangsters” were either inconsistent with objective country of origin information (“COI”) or AMZ’s mere speculation. The DOI then considered the performance/effectiveness of the Pakistani police in the context of objective COI, including those which corroborated AMZ’s assertions that the Pakistani police were inept and that politically motivated violence in Pakistan was rife (see paragraph 20.1 of the DOI Decision), and those which showed that reforms had been and were ongoing in Pakistan and that the Pakistani government had taken practical steps to protect the rights of its citizens and to improve the effectiveness of the police (see paragraph 20.2 of the DOI Decision). The DOI also noted there was COI which showed that avenues of complaints against the police were available in Pakistan (see paragraph 20.3 of the DOI Decision).

(4)   According to AMZ’s assertions and as evidenced by his mother’s and siblings’ trouble-free stay in Lahore, it was the Father who was targeted by people from PMLQ. There was no credible evidence that AMZ and his family members were at real and substantial risk of harm in Pakistan. Given PMLQ had lost its political might and further given AMZ’s freedom of movement in Pakistan, his risk of harm from locals from PMLQ (if at all) was further lowered. Given that AMZ was an able-bodied adult who was 22 years old, the DOI considered it would not be unduly harsh for him to settle in Lahore with his mother and siblings if returned to Pakistan.

(5)   Even though AMZ claimed he did not have a chance to seek non-refoulement protection after he landed in Hong Kong because of the Father’s urgent need to seek medical attention, he only made his application for non-refoulement protection 39 days after his arrest by the police. The DOI claimed such delay

was inconsistent with AMZ’s claimed intention for coming to Hong Kong and his awareness of the provision of non-refoulement protection in Hong Kong. The DOI took the view that AMZ’s undue delay in his application for non-refoulement protection inevitably damaged the general credibility of his claim.

27.  In respect of BOR3 risk, AMZ claimed he would be in danger of being subjected to BOR3 risk upon return to Pakistan. But although AMZ claimed he was slapped/whipped and suffered fracture in his right lower leg by kidnappers from PMLQ in 2012, the DOI was the view that the alleged kidnap was fraught with credibility issues and unsupported by reliable evidence. Anyway, the DOI considered reasonable protection would be available to AMZ in Pakistan had he pursued his complaints with the authorities. Therefore, the DOI did not accept AMZ would face a genuine and substantial risk of being subjected to ill-treatment under BOR3 upon his return to Pakistan.

28.  In respect of persecution risk, the DOI accepted AMZ was a Pakistani national and was outside his country of nationality. But the DOI considered AMZ’s problems with people from PMLQ (even if they were truthful) were essentially private in nature and had nothing to do with any Convention reason. Further, for the reasons discussed in paragraph 26 above, the DOI did not accept AMZ’s perceived risk of harm from the people from PMLQ was well-founded. Thus, the DOI found AMZ’s case did not warrant non-refoulement protection on the ground of persecution risk.

29.  In respect of torture risk, AMZ’s claim was based on his fear that if he were to be returned to Pakistan he would be harmed by the people from PMLQ as they wanted him to reveal the Father’s whereabouts. The DOI was of the view that the injuries AMZ claimed he suffered pursuant to his kidnap by the people from PMLQ in 2012 were insubstantial and arguable, but there was no indication that the kidnap and beating were inflicted by, or at the instigation of, or with the consent/acquiescence of a public official or other person acting in an official capacity, especially when PMLN was the ruling party in Punjab at the material time. Further, AMZ had never been accused, charged, interrogated, arrested or imprisoned in Pakistan. He was also able to obtain a passport and depart Pakistan without much hindrance, which was indicative that the Pakistani government did not have any adverse interest in him, which might render him a subject to “torture”.

30.  For all of the above reasons, the DOI rejected AMZ’s non-refoulement claim.

Adjudicator Decision

31.  The Adjudicator noted AMZ’s notice of appeal/petition was out of time by 20 days. According to section 37ZT(2) of the IO and paragraph 9.2 of the Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme (“Petition Guide”), the Board must decide, as a preliminary issue without a hearing, whether to allow the late filing of the notice of appeal/petition, but in doing so the Board might only take into account (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. Section 37ZT(3) of the IO and paragraph 9.3 of the Petition Guide further provide that if the 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 later filing thereof.

32.  The Adjudicator then referred to the relevant authorities, and stated that a late appellant must pass the test regarding his breach of the time limit first, and it is only if leave for late filing is granted that a tribunal needs to consider the merits of the case. In section 5 of AMZ’s notice of appeal, AMZ stated “Because I got it on 23 April 2016 …… got 14 days from 23 so I was late. I do not know about it and time passed”. The Adjudicator did not consider such statement to be any reasonable excuse for the purpose of considering whether to grant extension of time, and he saw no justification to exercise discretion to grant extension of time for AMZ to file his notice of appeal. Thus, the Adjudicator refused leave for late filing of the notice of appeal. “Accordingly, the appeal is a nullity as it is filed out of time, and [the Adjudicator] cannot consider the same”.

33.  However, for the sake of completeness, the Adjudicator went on to consider whether AMZ’s case had any arguable merits. In relation to the incident in which AMZ said that a leader of PMLQ came to AMZ’s house to ask for the Father’s whereabouts, and the police took no action when report was made in relation to this man’s harassment of AMZ’s paternal grandmother, the Adjudicator considered it was unsurprising that the police could not do anything as the identity of such man was unknown. The Adjudicator also did not see any evidence to establish “official acquiescence”; he found details of the alleged report to the police woefully lacking; and he noted AMZ’s paternal grandmother did not report to any other police station, complain to officers higher in the police hierarchy or complain to any other independent institution like the Ombudsman. In relation to the kidnap incident, the Adjudicator noted the report to the police about the incident by AMZ’s uncle was insufficient to establish “official acquiescence” by the police.

34.  In relation to torture risk, the Adjudicator noted that although AMZ’s case was about seeking revenge against the Father and consequent alleged hostility towards AMZ, there was no evidence of any act (less still in the abduction incident) of instigation or authorisation by the Pakistani national government. For reasons explained in paragraph 33 above, the Adjudicator considered there was no evidence to establish the issue of “official acquiescence” by the police or to establish the issue of “passive acquiescence” (ie failure of due diligence by the national government or how such failure would subject AMZ to the risk of torture or CIDTP or persecution by the national government or by any official state authority).

35.  Further, AMZ was able to fly out of Pakistan via proper immigration channels using his own passport without any problem from the government. The Adjudicator accepted this view was not decisive, but at least it did not suggest AMZ was wanted or targeted for torture by the national government. The Adjudicator found the evidence failed to establish involvement by anyone qua the official capacity of a State agent acting for and on behalf of the government, and the absence of this aspect alone would lead to dismissal of the appeal under torture risk even if extension of time were to be granted for AMZ for late filing of the notice of appeal.

36.  The Adjudicator noted the alleged assault on AMZ and the injury details were vague and unsupported by any independent evidence, but such assault was not “torture” unless inflicted by someone acting in the official capacity of the State. There was no evidence that in assaulting AMZ the vaguely asserted “PML(Q) supporters” were acting for and on behalf of the government of Pakistan. The Adjudicator further noted there was no evidence showing any physical/mental pain and suffering that satisfied the element of severe pain and suffering for torture risk. Although the lack of such element in the past did not mean no torture in future, the Adjudicator considered the evidence did not establish substantial grounds showing a foreseeable and real risk. So even if extension of time were to be granted for filing AMZ’s notice of appeal, the Adjudicator considered the appeal must also fail under torture risk for the aforesaid reason that was in addition to and independent of the requirement of a State agent referred to in paragraph 35 above.

37.  In relation to the issue of internal relocation which was independent of the above discussions, the Adjudicator agreed with the DOI Decision that stated in detail why AMZ was safe to return to Pakistan. The Adjudicator also referred to and summarised various relevant COI. The Adjudicator did not accept that the unidentified alleged assailants of 2½ years ago would still be interested in locating AMZ all over Pakistan, especially when he was not even the person whom they held to be responsible for the death of the “general councillor of the PMLQ”, even if they had the huge manpower/resources and willingness to look for “a needle in the haystack”. The Adjudicator considered there would be places in Pakistan, other than AMZ’s home locality, for a 22-year-old and able-bodied young man to safely reside without experiencing undue hardship, which suggested AMZ’s appeal would have failed.

38.  In relation to BOR3 risk, the Adjudicator did not find any substantial ground to believe AMZ would face future risk of serious harm. Further, the COI showed reasonable availability of State protection from such harm. The situation failed to establish CIDTP, so the appeal also would have failed under BOR3 risk even if extension of time were granted for late filing of AMZ’s notice of appeal. In any event, the Adjudicator found AMZ could safely reside in Pakistan (at least other than his home locality), which was an additional and independent reason for failure to establish BOR3 risk even if extension of time were granted for late filing of the notice of appeal.

39.  In relation to persecution risk, the Adjudicator for similar reasons found no substantial ground to believe AMZ would face a future risk of serious harm. Further, the COI showed reasonable availability of State protection from such harm. The alleged assault and future risk thereof had not been and would not be launched under any Convention category. Still further, the handful of alleged assailants did not come within the meaning of “populace” in refugee law. It was said the situation fell far short of establishing persecution risk even if extension of time were to be granted for late filing of AMZ’s notice of appeal. In any event, AMZ could safely reside in Pakistan (at least other his home locality), which was an additional and independent reason for failure to establish persecution risk even if extension of time were granted for late filing of the notice of appeal.

40.  The Adjudicator concluded that AMZ had not shown any merits to his claim so that even if late filing of his notice of appeal were allowed there would have been no prospect of him succeeding. And there was nothing in the facts relied on by AMZ that might amount to special circumstances by reason of which it would have been unfair/unjust not to allow late filing of the notice of appeal.

Extension of time?

41.  Form 86 was filed on 11 September 2017, so it was about 12 months after the Adjudicator Decision dated 26 September 2016 and about 9 months beyond the deadline provided in Order 53 rule 4(1) of the RHC. According to AW v Director of Immigration & anor,[3] whenever there was failure to act promptly or within 3 months, there was “undue delay”. Even though the court might be satisfied in light of all the circumstances there was good reason for the failure, nevertheless the delay, viewed objectively, remained “undue delay”. So the court had a discretion to refuse leave for the making of the application or the granting of the relief sought on the substantive application on the ground of undue delay if it considered granting such leave would likely cause substantial hardship to, or substantial prejudice to rights of, any person or would be detrimental to good administration. The burden is on the applicant to show he has a good reason rather than a good excuse for the delay.[4]

42.  In Re Thomas Lai Application for Leave to Apply for Judicial Review,[5] G Lam J stated the principles to be applied in an application to extend time for judicial review, which principles were no less applicable to cases involving claims for humanitarian protection, are as follows:[6]

(a)   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 section 21K(6) of the HCO and Order 53 rule 4(1) of the RHC are not intended to be applied in a technical manner. As long as no prejudice is caused, the court will not rely on these provisions to deprive a litigant who has behaved sensibly and reasonably of relief to which he is otherwise entitled.

(b)   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/decisions put into uncertainty for many months after they have been made and acted upon.

(c)   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 depends on the circumstances of each case.

The following factors are likely of significance (but are not exhaustive): (i) the length of the delay, (ii) an explanation for the delay, (iii) the merits of the substantive application, (iv) prejudice, and (v) whether the application raises questions of general public importance.[7] The factors in (i) and (ii) above may but not necessarily involve the time taken to apply for and obtain legal aid, or the time taken to apply for extension of the scope of legal aid and/or to make legal aid contribution.[8]

43.  In Form 86 and AMZ Aff, AMZ made no effort to explain the delay. There was no suggestion that he was seeking legal advice or applying for legal aid. In any event, there is no general proposition that difficulty or time taken in obtaining legal aid would be a good reason for extending time to apply for judicial review, and each case depends on its own circumstances.[9] Indeed, the mere fact that legal aid or pro bono assistance is not available is not sufficient basis for extension of time; it is only one of the factors in the court’s consideration of whether there are good reasons to justify an extension of time notwithstanding the delay.[10] In any event, where an applicant attributes the delay to the process of obtaining legal aid, it is incumbent on him to demonstrate he has exercised due diligence in making and processing that application.[11] Besides, it is the applicant’s duty, if he wishes to rely on the time to apply for and obtain legal aid as a ground for extension of time, to provide a full chronology regarding his legal aid application which is verified or confirmed by the relevant legal aid officer who may provide such further information/explanation as may be appropriate or necessary either by way of a letter or an affidavit.[12] No evidence of application for legal aid or chronology of steps taken by AMZ to prosecute his application for leave to apply for judicial review was placed before this court.

44.  In the absence of any good reason for the delay, a delay of about 9 months cannot be said to be insignificant, especially when extension of time was refused in AW that involved a delay of about 6 months and in Re Thomas Lai that involved a delay of slightly over 2 months, and especially when AMZ had already been late in filing with the Board his notice of appeal petition against the DOI Decision.

45.  In AW v Secretary for Security & ors,[13] it was said the Administration was burdened with prolonged responsibility of screening claims of and caring for non-refoulement claimants, and the community was concerned that legitimate non-refoulement claims should be dealt with promptly. I agree that delay in bringing judicial review proceedings and/or to allow extension of time where there has been inexplicable undue delay plainly prejudice good administration in the exercise of effective immigration control.

46.  In Po Fun Chan v Winnie Cheung,[14] Litton NPJ said “[where] an application is made many months after the time limit mentioned in r. 4, or where the orders sought would lead to no practical benefit, the judge is entitled to refuse leave, however strong the complaint might otherwise be”. Hartmann J (as he then was) observed in Law Chun Loy v Secretary for Justice on behalf of the Chief Executive of the Hong Kong Special Administrative Region[15] that “any person who seeks by way of judicial review to challenge a public law decision is from the outset under a clear warning: ‘sleep on your rights and, even if your cause is meritorious, you may find the gates locked against you’”. G Lam J at page 16 in Re Thomas Lai said, “[it] must however 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 is unduly disrupted and policies and decisions are put into uncertainty many months after they have been made and acted upon”.[16] 

47.  I also note that allegations that the delay would not cause any prejudice and that an extension of time was not likely to cause any detriment to good administration would not arise for consideration unless/until good reasons had been shown for the delay.[17] I have found there had been undue delay in taking out Form 86, and there was no good reason to account for the delay. But even if I am wrong and the aforesaid allegations arose for consideration, I find AMZ’s delay in bringing the present application (which I have found to be unjustified) would prejudice good administration. As Chow J in Nisa Azizan & anor v Director of Immigration & anor explained, “generally speaking, unjustifiable delay in challenging immigration decisions made by the [DOI] or the Secretary [for Security] would be detrimental to the administration of effective immigration control in Hong Kong”.[18]

48.  Next, it was held in Re Thomas Lai at pages 17-18 that the court in considering whether to exercise the discretion to grant extension of time is entitled, in an appropriate case, “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”.

49.  I note that as a starting point the court in any judicial review plays a supervisory role and does not adjudicate substantively on the impugned decision, and judicial review is not a further/alternative appeal procedure.[19] As I have explained in RM v Gerard Paul Muttrie, Esq & anor,[20] “…… [in] the exercise of its supervisory jurisdiction in the context of judicial review, the court is to examine whether the DOI and/or Adjudicator, in dismissing the USM claim or petition (as appropriate) (a) made any error of law in his decision, (b) handled the matter or adopted procedures without compliance with high standards of fairness as required by the law and as explained by the court of final appeal in Secretary for Security v Sakthevel Prabakar,[21] and (c) whether the substantive decision satisfied the enhanced Wednesbury[22] test”.[23]

50.  For the present purposes, I am prepared to also consider AMZ’s assertions in Form 86 and AMZ Aff to see whether there are arguable merits for the intended application for judicial review. But such assertions did not set out any or any viable ground to challenge the DOI and Adjudicator Decisions. All AMZ asserted was that he wanted to seek non-refoulement protection in Hong Kong and he wanted “to fight them in my right”. They did not give any arguable basis to say the DOI and/or Adjudicator had erred in law or procedure in reaching their decisions. The burden was on AMZ as the applicant to show the grounds advanced were arguable,[24] and this AMZ failed to do so. Nevertheless, I have considered with rigorous examination and anxious scrutiny the papers for the present application by AMZ. Upon careful consideration, I am unable to fault the DOI and Adjudicator Decisions. The DOI and Adjudicator had analysed the materials, claims and evidence with care and caution. They also applied the correct standard of proof. I found no substance in AMZ’s alleged complaint against the substantive issues addressed in the DOI and Adjudicator Decisions.

51.  As regards the Adjudicator’s refusal to extend time for AMZ to file the notice of appeal out of time, I had considered his reasons and find myself unable to fault the analysis and conclusion by the Adjudicator Decision. The Adjudicator considered AMZ’s explanation that he received the DOI Decision on 23 April 2016 but he “did not know about it” and allowed the 14-day period to lapse. The Adjudicator was unconvinced it would have required 20 days to file the notice of appeal, and did not find any special circumstances which would make it unjust not to allow late filing of the notice of appeal.

52.  It appeared AMZ’s only excuse was to allow the time to lapse because “he did not know about it”. But there was nothing to show what AMZ did upon receipt of the adverse DOI Decision. I am satisfied there was no evidence of procedural unfairness, error of law or a failure to adhere to a high standard of fairness by the Adjudicator.  The decision he made not to grant an extension of time to allow for late filing was not Wednesbury unreasonable.  Even if this application for leave to apply for judicial review had been made within the prescribed time limit, I would have refused leave as there is no realistic prospect of success (see paragraphs 49-50 above).

53.  I also find there was no question of general public interest or importance in the present case.

54.  As for the DOI Further Decision, it was made by the DOI after the Adjudicator Decision. To seek judicial review, a person had to exhaust alternative remedies,[25] and there was no evidence or even suggestion that AMZ had resorted to the alternative remedy of appealing to the Board, so there was no justification for the present application if it related to the DOI Further Decision. In any event, Form 86 in relation to the DOI Further Decision was still out of time, and for the reasons given above there was no justification to extend time. Anyway, since AMZ did not provide further information to the DOI to assess the BOR2 risk, in light of the materials, evidence and findings set out in the DOI Decision and DOI Further Decision, the DOI could not be faulted in arriving at his conclusion in the DOI Further Decision.

55.  In all the circumstances, I find there was substantial undue delay with no good reason to justify an extension of time, and there was no reasonably arguable ground of review. I therefore refuse to extend time for AMZ to apply for judicial review with no order as to costs. That being the case, AMZ’s application for leave to apply for judicial review falls away as it was out of time.

56.  The applicant has been named above as “AMZ”. For the avoidance of doubt, I direct that the applicant shall be named “AMZ” instead of his name in these proceedings.

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

[1] it was made clear in the DOI Decision that AMZ’s claims were considered separately and assessed on their individual merits, so the Father’s immigration history in Hong Kong as well as the result of his non-refoulement claim had no bearing on that of AMZ

[2] MPA and MNA were commonly used in Pakistan to refer to member of the provincial assembly and member of the NA

[3] [2016] 2 HKC 393, 402-403

[4] see Re Thomas Lai Application for Leave to Apply for Judicial Review [2014] 6 HKC 1, 17, and BI v Director of Immigration [2016] 2 HKLRD 520, 565, which was approved and applied in AW at pp 406-407

[5] [2014] 6 HKC 1, 15-18

[6] see AW at pp 406-407

[7] see Re Thomas Lai at pp 17-18

[8] see AW at pp 407 and 409

[9] see Re Thomas Lai at p 18

[10] see TH & anor v Director of Immigration HCAL114/2014, Chow J (unreported, 20 July 2015) para 74 and AM & ors v The Director of Immigration & anor HCAL10/2015, DHCJ Kent Yee (unreported, 14 February 2017) paras 14-15 (see also AW at p 407 and Tiwari Amandeep v Torture Claims Appeal Board and Director of Immigration HCAL226/2015, Yau J (unreported, 21 April 2017) para 29)

[11] see Re Thomas Lai at pp 18-19, AM & ors at para 16 and AW v Secretary for Security & ors HCAL91/2013, P Li J (unreported, 26 January 2015) para 13

[12] see BI at pp 563-564

[13] HCAL91/2013, P Li J (unreported, 26 January 2015) para 34

[14] (2007) 10 HKCFAR 676, 693

[15] HCAL13/2005, Hartmann J (as he then was) (unreported, 26 October 2006) para 13

[16] see AW at pp 403-404, X v Torture Claims Appeal Board & anor HCAL143/2013, Zervos J (unreported, 4 September 2014) paras 11-12, and Karamjit Singh v Torture Claims Appeal Board & anor HCAL250/2015, M Poon J (unreported, 27 July 2016) paras 10-13

[17] see Magapower Garments Ltd v Director-General of Trade and Industry HCAL3199/2001, Chu J (as she then was) (unreported, 4 March 2002) para 26

[18] HCAL203/2015, Chow J (unreported, 15 April 2016) para 63 (see also Pagtama Victorina Alegre & ors v Director of Immigration, HCAL13, 45 & 56/2014, Au J (unreported, 12 January 2016) para 238(3), AW at pp 414-415, Dhiman Jasvir v Torture Claims Appeal Board & anor HCAL246/2015, Barnes J (unreported, 16 February 2017) para 40, Karamjit Singh v Torture Claims Appeal Board & anor HCAL250/2015, M Poon J (unreported, 27 July 2016) para 22, and Tiwari Amandeep at paras 40-44)

[19] see TK v Jenkins & anor HCAL126/2010, Lam J (as he then was) (unreported, 21 October 2011) paras 26-28 (upheld on appeal in TK v Jenkins & anor [2013] 1 HKC 526, 542), Marcelo de Vera Centeno v Director of Immigration HCAL50/2012,Lam J (as he then was) (unreported, 9 May 2012) para 8, and RM v Gerard Paul Muttrie, Esq & anor HCAL166/2015, DHCJ Marlene Ng (unreported, 3 March 2016) para 27

[20] HCAL166/2015, DHCJ Marlene Ng (unreported, 3 March 2016) para 27

[21] (2004) 7 HKCFAR 187

[22] Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 (see also AM v Director of Immigration & anor [2014] 1 HKC 416, 430)

[23] see also TK v Michael C Jenkins Esq & anor HCAL50/2012, Lam J (as he then was) (unreported, 9 May 2012) paras 26-28

[24] see Po Fun Chan at pp 685-686

[25] see Kwok Ping Sheung Walter v The Law Society of Hong Kong HCAL73/2012, Au J (unreported, 27 September 2013) paras 26-27