MUHAMMAD ILYAS v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 3022/2018

[2023] HKCFI 2284

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3022 of 2018

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

Following;

	consideration of the documents only;            or
	consideration of the documents and oral submissions by the Applicant in open court;

Leave to apply for Judicial Review refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 31 December 2018 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 27 September 2016 (the “Decision”) dismissing his application for the late filing of the Notice of Appeal/Petition (“NOA”) against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 17 May 2016 (the “Notice”). Though the Director is named as a proposed respondent in the Form 86, no relief is sought in respect of the Notice or any decision of the Director. The Applicant did not request an oral hearing. Having considered the nature of the application and issues raised, the Decision, the Notice, the papers, and all the circumstances, the Court considered that the application may be justly determined on paper without an oral hearing.

2.  The leave application was filed about two years and three months after the date of the Decision sought to be reviewed. Pursuant to section 21K(6) of the High Court Ordinance and Order 53, rule 4(1) of the Rules of the High Court, it is filed about two years out of time. The application is deemed to include an application for leave to apply out of time.

3.  In AW and Director of Immigration and William Lam[1], the Court of Appeal held that the following factors are relevant in determining whether to grant leave to file an application for leave to apply for judicial review out of time: (1) length of the delay; (2) explanation for the delay; (3) merits of the substantive application; (4) prejudice to the applicant if leave is refused vis-à-vis that to the respondent and public administration if leave is granted; and (5) whether the application raises any questions of general public importance, and whether those questions are likely to have to be resolved by the courts in any event. Merits is usually a very important factor. Where the delay is not very substantial, merits is usually the determinant factor. But it was also held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung[2] that where an applicant is many months out of time, leave may be refused “however strong the complaint might otherwise be”. The delay in this case in terms of years is so substantial that leave may be refused on this ground alone. As analyzed below, this leave application is patently wanting in merits also. This finding is for completeness and is unnecessary.

Background

4.  The Applicant is a Pakistani national, now about 49 years old. He raised a torture claim under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment on 19 June 2006. That claim was rejected by the Director on 9 August 2012 and his petition against that decision was dismissed on 9 November 2012. That decision became final.

5.  Following the implementation of the Unified Screening Mechanism (“USM”), his claim was also assessed on BOR 3 Risk[3]; Persecution Risk[4]; and BOR 2 Risk[5]. As revealed in the Director’s Notice, which the Applicant does not dispute, he attended a briefing before an immigration officer on 19 June 2015 with the assistance of a Punjabi interpreter. He was given a blank Supplemental Claim Form (“SCF”) and informed that he was required to complete and return it within a specified time, failing which his non-refoulement claim will be treated as withdrawn. He was also informed that a person whose claim has been withdrawn may apply to re-open it only if he could provide sufficient evidence in writing to satisfy the case officer that he had not been able to return the SCF due to circumstances beyond his control. He was provided with free legal assistance by the Duty Lawyer Service for the purpose of processing his claim since 22 June 2015. He never returned the completed SCF, despite he was given two extensions of time to do so by 24 September 2015. The Applicant became unreachable by phone since 4 September 2015. On 24 September 2015, the Duty Lawyer Service informed the Director that they had no instruction to act for the Applicant, obviously due to in-cooperation on the part of the Applicant. On 25 September 2015, the Director issued a notification informing the Applicant that his claim was treated as withdrawn (the “withdrawal notification”).

6.  On 26 April 2016, the Applicant applied to re-open his claim. He relied on the depression he suffered as a result of his uncle’s death on 12 June 2015 and his feared harm if returned to his home country as the circumstances beyond his control which prevented him from completing and returning the SCF. His feared harm has no relevance to his application to re-open.

7.  The Director was satisfied that the Applicant understood his obligation to complete and return the SCF on time and knew what he had to prove in order to obtain leave to re-open his claim. He took into account the Applicant’s immigration history, that he was arrested for fighting in a public place on 7 June 2015 but was released on police bail on the same day and then released unconditionally without any charge laid against him on 28 June 2015. He found the Applicant had never lost his freedom or liberty during that period. The Director considered the fact that the Applicant had never sought to re-open his claim until 26 April 2016 after he had been detained in Castle Peak Bay Immigration Centre (“CIC”) cast doubt on his real intention in seeking to re-open his claim and his feared harm if he is returned to his home country. He did not consider the Applicant’s alleged depression a sufficient circumstance beyond his control that had hindered him from returning the completed SCF between 19 June 2015 and 24 September 2015. The Director therefore issued the Notice refusing his application to re-open his claim.

8.  The Applicant, who was then detained in CIC, filed an NOA against the Notice by post. Paragraph 8.1 of the Petition Guide provides that a person who wishes to petition against the decision of the Director rejecting a non-refoulement claim, must file an NOA within 14 days after the Notice was given to him, unless late filing of the NOA is allowed by the Board. Section 37ZT(1) of the Immigration Ordinance requires an intending appellant to state the reasons for his late application. The reason given by the Applicant in section 5 of the NOA is as follows:

“On 23.5.2016 I have hand over my Appeal Forms to welfare for mail but Appeal Board did not receive my Appeal Forms. So for this you can confirm my case officer and welfare officer of CIC. I just came to know about above 7.6.2016. So now sending you again Appeal Forms. (Please confirm from Immigration case officer).”

As the Notice was sent to the Applicant on 17 May 2016 and the NOA was received by the secretariat of the Board at 12:30 pm on 13 June 2016, the Board held that the deadline for filing the NOA fell on 1 June 2016 and the Applicant was 12 days late.

9.  The Applicant seems to suggest he had filed the NOA (the “first NOA”) within time by handing it over to his case officer or welfare officer for posting on 23 May 2016, very shortly after he had received the Notice. That first NOA never reached the secretariat of the Board. Then, on or about 7 June 2016 after the 14-day period expired, he somehow “came to know” that first NOA was lost through the process and he sent a second NOA which is the one received by the secretariat on 13 June 2016. He seemed to put the blame on the Immigration Department. He did not give any particulars as to how he came to know about that loss. He did not disclose his source of that information and produced no documentary evidence in support, not even a written statement from the person, presumably someone from the secretariat, who informed him about the loss. He did not even produce a statement or confirmation from his case officer or welfare officer acknowledging receipt of the first NOA from him. He produced not a scintilla of evidence in support of his case which is made up of nothing but bare assertions.

10.  The Board referred to the standard mailing arrangement in CIC which it is familiar with. Under that arrangement which is notoriously known to the inmates, inmates are provided with paper, envelopes and stamp for writing and sending letters. They put their letters in open envelopes which are addressed and stamped and deposit them in one of the many drop-in mailboxes placed in the common areas of CIC. The clerical staff of CIC collects the mails every day, presents them to a responsible officer for inspection, and takes the approved mails to the post office for posting usually on the same day and in any event not later than the following day, unless that day falls on a public holiday. The clerical staff must have appreciated the importance of letters sent by inmates and would have taken great care to ensure that nothing in the drop-in mail/post boxes were left unattended or unprocessed. Under such arrangement, if the Applicant had sent the first NOA as he alleged on 23 May 2016, it would have been received by the secretariat within a day or two; but the Secretariat had not. The Board found that the Applicant had not sent the first NOA on 23 May 2016 as he alleged and rejected his explanation. The Board also found there was nothing that might amount to special circumstances which might make it unjust not to allow the late filing of the NOA and hence dismissed his application for late filing of the NOA.

Legal principles applicable to judicial review

11.  The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection feasibility of internal relocation and in this case, circumstances relating to late filing of NOA. The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[6].

Grounds for judicial review

12.  The issue raised by this leave application is the propriety of the Board’s Decision refusing the Applicant’s late filing of the NOA, not the merits of his application to re-open his non-refoulement claim and still less the merits of that claim. The Applicant’s grounds of judicial review as stated in his Form 86 are: (1) that the Decision is the result of a misunderstanding with the Immigration Department and (2) that his life will be in danger if returned to his home country. The Applicant did not describe the misunderstanding referred to under his first ground. By reason of the issues raised in this leave application, the second ground is a non-starter.

13.  As for the first ground, this Court has no misunderstanding of the Applicant’s case. He meant to say he had sent the first NOA within time on 23 May 2013 and on learning that it had not been received by the secretariat he sent the second NOA on or about 7 June 2013 which was received by the secretariat, but the Board misunderstood his case and considered the second NOA as having been filed out of time without regard to the first NOA which was sent within time but lost in the process. Though the Board did not use as explicit language as this Court does in describing the two NOAs, in rejecting the Applicant’s evidence about having sent one NOA on 23 May 2013, it clearly has no misunderstanding of the Applicant’s case. Having rejected that evidence, the Board was clearly right to find the NOA which reached the secretariat on 13 June 2013 as being 12 days late. There is no substance under this ground.

Conclusion

14.  The Applicant’s first ground is not substantiated. His second ground is a non-starter. In the absence of any specific grounds of application, the Court in an application for judicial review could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision. The essence of the Applicant’s complaint is that he disagreed with the Board’s finding that he has filed his NOA (meaning the first NOA) within time. This leave application is in effect a challenge of the Board’s finding of fact dressed up as a judicial review.

15.  The applicable version of section 37ZT(2) of the Immigration Ordinance mandates the Board to decide as a preliminary decision without a hearing whether to allow the late filing of an NOA and in doing so it may only take account of the statement of reasons stated in Section 5 of the NOA 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. The Applicant gave a reason in Section 5 which is not accompanied by any documentary evidence. The Board confirmed that it had no such knowledge. On the evidence and material available, it was open to the Board to reject the reason given by the Applicant and to find he had not given such an NOA to the case officer or welfare officer for filing with the secretariat and that the NOA received by the Board on 13 June 2016 is the only NOA filed by the Applicant which was filed 12 days’ late. These are finding of facts which is within the province of the Board to make and which the Court in an application for judicial review will not intervene save for errors of law, procedural unfairness or irrationality in the Board’s Decision.

16.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles relating to late filing of NOA; correctly identified the issues raised by the late filing and observed a very high standard of fairness. The Court could not detect any error of law in the Decision or procedural unfairness at any stage of the proceedings. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success. For the above reasons, leave to apply for judicial review is refused.

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