RE QASIM ALI

CACV 547/2018

[2019] HKCA 430

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 547 OF 2018

(ON APPEAL FROM HCAL 199 OF 2018)

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J U D G M E N T

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Hon Lisa Wong J (giving the Judgment of the Court):

The appeal

1.  This is an appeal by the abovenamed applicant, Mr Qasim ALI, against the order made by Deputy High Court Judge Josiah Lam (“Judge”) on 29 October 2018 refusing him leave to commence judicial review proceedings to quash the decision of the Torture Claims Appeals Board (“Board”) given on 15 December 2017 (“Board’s Decision”), which refused the applicant’s application for late filing of his notice of appeal against the rejection by the Director of Immigration (“Director”) of his non-refoulement claim (“NRF Claim”) by a notice of decision dated 21 July 2017 (“Director’s Decision”).

Basis and allegations in support of NRF Claim

2.  The basis of the NRF Claim made by the applicant, a national of Pakistan now aged about 26, is a fear of being harmed, or even killed, by his uncle Liaqat and his cousins Ilyas and Razaq over a land dispute.  Such alleged fear is said to arise out of the following circumstances:

(1)  The applicant was born and raised in Minawah, Bata Pul, Lahore, Pakistan.  He worked in the family’s diary farm from 2008 to 2011.

(2)  His grandfather (“Grandfather”) used to own 8 acres of farmland in Bagh Wali Puli (“Land”).  Grandfather let each of his 4 sons take a portion of the Land for his own use and management.  Liaqat took about 5 acres of the Land while the applicant’s father (“Father”) and his 2 other uncles each took about 1 acre.

(3)  Grandfather passed away.  Father, the applicant and his brother Azam had a discussion with Liaqat about the uneven distribution of the Land 5 to 6 months after Grandfather’s death.   The discussion turned into a heated argument resulting in a fight between the two branches of the family.  During the fight, Liaqat hit the applicant with a wooden stick at his forehead and all over his body, causing wounds in the applicant’s forehead and bruises on various parts of his body, which took the applicant 20 to 25 days to recover from.  Liaqat also attacked Father and Azam with the wooden stick though they sustained relatively minor injuries.  Liaqat himself was not hurt in this first confrontation. 

(4)  Father and Azam filed a complaint against Liaqat with the police in Minawah.  However, apart from coming to the applicant’s house once to make further enquiries, the police took no action against Liaqat.

(5)  After the said first incident, Liaqat’s family would scold the applicant with abusive language whenever they bumped into each other in Minawah.  On 2 to 3 occasions, Ilyas even threatened to kill the applicant with a pistol.

(6)  About 1½ months after the said first fight, Ilyas together with 4 to 5 men, all armed with guns, approached the applicant and Azam while they were farming on Father’s portion of the Land and opened fire in the air 2 to 3 times to scare them.  In the ensuing fight, Ilyas shot Azam in his right hand (for which he had to have surgery and was hospitalised for about 20 to 25 days).   The applicant was punched and kicked repeatedly for 5 to 10 minutes but he was not seriously injured.

(7)  Following the applicant’s complaint to the police, Razaq (and not Ilyas) was arrested and Ilyas threatened the applicant that he would take his life in revenge for his report to the police.  The applicant suspected that the police did not arrest Ilyas because he was the administrator for Minawah of the Pakistan Muslim League (N) (“PML(N)”) and was as such influential.  Razaq was released after a few days.  Thereafter, Ilyas kept calling the applicant from time to time to make life threats against him.

(8)  Shortly after this second incident, the applicant started to support the Pakistan Tehreek-e-Insaf (“PTI”), a political party in opposition to PML(N), because the applicant hoped the PTI would help him stand against Liaqat’s family.  He began to attend rallies and meetings of the PTI and also to assist in promoting the party.

(9)  One day in August 2011, when the applicant was attending a PTI rally together with 10 to 12 other PTI supporters, Razaq and 3 to 4 men whom the applicant believed to be supporters of the PML(N) interrupted the rally.  A barehanded fight took place.  Razaq and his men were beaten up badly while the applicant was not injured.  Some police officers came on the scene and arrested 2 PTI supporters, whereupon the applicant fled with the other PTI supporters.  After this fight, the applicant received a call from Ilyas who threatened, “Whenever I see you, I will take care of you!”

(10)  About 10 to 15 days later, 2 men on motorcycles fired their pistols at some PTI members while they were sitting on the street near Minawah.  One of the PTI members was fatally shot in his chest, arms and legs.  The applicant was in the toilet at the time and was not injured.  Soon after this incident, Ilyas telephoned the applicant to warn, “You will not be that lucky next time!”  This made the applicant realise that the attackers were in fact sent by Ilyas.  Ilyas was arrested by the police a few days later following a complaint by PTI members, but he was soon bailed out.

(11)  The applicant moved to his maternal uncle’s home in Daroghwala, Lahore around 4 to 5 days after the shooting in order to avoid Liaqat, Ilyas and Razaq.  

(12)  The applicant testified against Ilyas in respect of the shooting incident before the Session Court of Lahore.  Ilyas had jumped bail and was absent from his own trial.

(13)  Ilyas had also lost his PML(N) membership and his position as the PML(N) administrator for Minawah because of the court case against him.  Nevertheless, the applicant knew that Ilyas still had the support of many PML(N) members and could still exercise influence within the party.   The applicant also claimed that the police could not protect him from Ilyas as they would still listen to Ilyas due to his connections to the people in power.

(14)  Between 2012 and 12 May 2015, the applicant moved to and from various places in Pakistan including Gujranwaka, Kashir, Sialkot, Changa Manga, Pato etc.

(15)  Fearing for his safety if he continued to stay in Pakistan, on 12 May 2012, the applicant fled to Guangzhou by air via Bangkok on his own Pakistani passport and Chinese visa.

Entry into Hong Kong and lodgment of NRF Claim

3.  The applicant entered Hong Kong illegally from mainland China on 15 May 2015.  He was arrested by the police on 26 June 2015.  He lodged the NRF Claim by written representation on 28 June 2015 and submitted his non-refoulement claim form on 22 June 2017.

Director’s Decision

4.  In processing the NRF Claim, the Director’s representative interviewed the applicant who received legal assistance from the Duty Lawyer Service (“DLS”). 

5.  The Director’s Decision covered all applicable grounds: torture risk[1], persecution risk[2], “BOR 2” risk[3] and “BOR 3” risk[4].  The Director found no substantial grounds for believing that there would be any real risk of the applicant being killed or harmed upon his return to Pakistan.

(1)  First, the intensity and frequency of past ill-treatment suffered by the applicant was assessed to be low and taken to be indicative of an unlikely future risk of harm even if the applicant be returned to Pakistan.

(2)  Second, the way and mode of the attacks on the applicant also indicated that his enemies had no real intention to kill or inflict serious harm on him.  In fact, nothing eventful had happened to the applicant between 2012 and 12 May 2015, suggesting that the applicant’s enemies were not as powerful or influential as he asserted.

(3)  Third, the dispute between the applicant and his uncle and cousins was purely private, arising from the uneven distribution of the Land.  Despite the political affiliations of the applicant’s uncle and cousins, it had nothing to do with the Pakistani government.  The objective country of origin information (COI) shows that reforms in the Pakistan police have taken place and are ongoing and that the Pakistani government has taken practical steps to monitor the conduct of the police, improve their effectiveness and protect the rights of its citizens.   The availability of state protection would negate or lower the level of risk (if any).

(4)  Fourth, reasonable internal relocation alternatives are available to an able-bodied adult like the applicant.  He had in fact lived away from Minawah safely between 2012 and May 2015.

Appeal to Board and Board’s Decision

6.  Pursuant to s 37ZS(1) of the Immigration Ordinance (“Ordinance”), the applicant could appeal against the Director’s rejection of the NRF Claim to the Board within 14 days, which expired on 7 August 2016.

7.  However, the applicant did not file his notice of appeal with the Board until 15 August 2017. In other words, his appeal to the Board was out of time for 8 days.

8.  In such situation, s 37ZT(1) requires the notice of appeal to include an application for late filing of the notice, which must include a statement of the reasons for failing to file the notice within time and be accompanied by any documentary evidence relied on in support of the reasons.  Section 5 of the form for the notice of appeal to the Board contains such an application.  However, the applicant did not give any reason for the late filing of his notice of appeal.  Then, by a letter dated 23 August 2017, received by the Board on 25August 2017, the applicant said, “It is my respectful submission to you that I do not know how to read or write because of that I got late for filing appeal that I was supposed to file on 10-08-17, over here there is no educated person, who could help me.  Please help me out and my case appeal be accepted.”

9.  Section 37ZT then continues to provide:

“(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.” (emphasis added)

10.  After setting out the provisions of s 37ZT, the Board directed itself on the following 3-stage approach alluded to in The Secretary of State for the Home Department v Begum (2016) EWCA Civ 122 (3 March 2016):

(1)  The first stage is to identify and assess the seriousness or significance of the failure to comply with the rules.  If the breach is serious or significant, the decision maker then considers the second and third stages.

(2)  The second stage is to consider why the failure occurred.  If there is a serious or significant breach and no good reason was given for the breach, then the decision maker moves to the third stage.

(3)  The third stage is to evaluate all the circumstances of the case, so as to enable the court to deal justly with the application.  In considering all the circumstances of the case, the decision maker also takes into account (a) the need for litigation to be conducted efficiently and at proportionate cost, and (b) the need to enforce compliance with rules, practice and directions and court orders.

11.  The Board’s reasons for refusing the applicant’s application for late filing of his notice of appeal can be found at [18]-[21] of the Board’s Decision as follows:

“18. Following the principles and methodology in the United Kingdom Begum case, I found, firstly, that a delay of 8 days in filing an appeal against the Notice of Decision is a serious and significant failure to comply with the rules.

19. Secondly, I do not find the Appellant’s reason for late filing acceptable to explain why he filed his Notice of Appeal 8 days late. In all the circumstances, the Appellant would have no good reason for the breach.

20. Following the 3rd stage referred to in Begum, I evaluated all the circumstances in this case and arrived at the conclusion that it is fair and just to refuse the Appellant’s application.

21. There were no other matters known to me or revealed by the factual basis of the Appellant’s claim which might amount to special circumstances and which might make it unjust not to allow the late filing of the Notice of Appeal.” (emphasis added)

12.  On the reasons for the delay, the Board was not impressed by what the applicant said in his letter of 23 August 2017 (i.e. that he was illiterate and there was no educated person to help him) because (1) the final paragraph of the Director’s Decision had expressly and clearly stated that the applicant must file his notice of appeal within 14 days of the date of the decision; and (2) the applicant was represented by the DLS and it was entirely up to the applicant to seek help and legal advice from the DLS upon receiving the Director’s Decision.  See [17] of the Board’s Decision.

Application for leave for judicial review and Judge’s Decision

13.  By a Notice of Application for Leave to Apply for Judicial Review issued under HCAL 199/2018 on 9 February 2018 (“Form 86”), the applicant sought leave to apply for judicial review to quash the Board’s Decision.  The Form 86, however, did not state any grounds on which relief was sought.  The supporting affirmation filed on the same date complained about (1) not being provided with any legal representation or interpretation service throughout the appeal to the Board[5] and (2) the Board dismissing his case without any hearing, which were said to be in breach of the applicable high standard of fairness.  The applicant also mentioned that he was detained in prison when he was served with the Director’s Decision and that he had sought help and advice in lodging an appeal to the Board from the DLS but the DLS declined his request.

14.  On 15 June 2018, the Judge conducted an oral hearing of the application, which the applicant attended in person and was provided with assistance from an Urdu interpreter. He informed the Judge that he was detained in prison between January and November 2017 and that he was not educated and could not find anyone in jail to help him.  The Judge’s reasons for refusing leave can be found at [37], [40]-[50] of the CALL-1 form dated 29 October 2018, [2018] HKCFI 2337 (“Call-1 Form”) as follows:

“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.

…

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.

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”.  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.  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. 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.

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.” (emphasis added)

Appeal to Court of Appeal and grounds of appeal

15.  By a notice of appeal filed herein on 8 November 2018, the applicant appealed against the refusal of leave for judicial review on the following grounds:

“1. The TCAB refused my late appeal, hence I should be able to seek judicial review against Director’s decision.

2. There was no translation for Notice of Appeal. It is unrealistic to expect that I would be able to read and understand everything and to know that a reason needs to be given with the application.

3. Late filing should be in the Board’s discretion and I believe I should be given leeway.

4. It does not make sense that I was expected to file a 14 day appeal when the service of the documents already took 6 days.”

16.  His written submission dated 28 February 2019 reiterated these grounds. 

17.  The applicant appeared in person at the hearing of the appeal on 1 April 2019.  He said nothing to add to his grounds of appeal or written submission.

Court of First Instance’s role in judicial review in non-refoulement claim

18.  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 and viability of internal relocation.  The role of the court in judicial review is not to re-assess the non-refoulement claim.  The court will scrutinise 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 [2018] HKCA 524 at [14(1)].

Court of Appeal’s approach in appeal against refusal of leave for judicial review in non-refoulement claim

19.  An appeal against a refusal of leave to apply for judicial review is not the occasion for the Court of Appeal to examine the decision of the Board afresh.  What the appellate court is concerned with is the decision of the judge at first instance which is considered in light of the grounds of appeal raised by the applicant.  The Court of Appeal shall interfere only if the judge had erred in law, failed to take into account a relevant matter or was otherwise plainly wrong.  See again Nupur Mst v Director of Immigration at [14(2)].

Discussion

20.  Section 37ZT(3) of the Ordinance gives the Board the discretion to allow the late filing of a notice of appeal if it is satisfied that, by reason of special circumstances, it would be unjust not to do so.

21.  Where a notice of appeal is filed out of time, s 37ZT(2) mandates the Board to decide as a preliminary decision without a hearing whether it allows the late filing of the notice of appeal, and in doing so, to take account of the length of the delay, the explanation for the delay and “any other relevant matters of fact within the knowledge of the Board”.

22.  We are surprised by the findings by the Board that a delay of 8 days was a “serious and significant failure to comply with the rules” and that the applicant would have no good reason for the breach.  In our view, it is reasonably arguable that such findings are unreasonable in the Wednesbury sense in light of the circumstances of this case:

(1)  A delay of 8 days cannot, on any view, be regarded as serious or significant.

(2)  In this case, the service of the decision under appeal on the applicant took 6 days.

(3)  The applicant was, to the Board’s knowledge, in prison when he received the Director’s Decision.  One can reasonably presume that an applicant in such a situation might or would have to go through more hurdles (if not difficulties) in arranging his affairs.  That the applicant could eventually lodge his appeal to the Board in August 2017 (Call-1 Form [42]) is therefore neither here nor there.

(4)  While the applicant had not provided a reason for his delay in section 5 of the appeal form, he had rectified the omission by his said letter dated 23 August 2017 to the Board before the Board exercised its discretion.  The explanation was that he was illiterate and could not find anyone educated to help him.  The fact that such circumstance might affect a great number of non-refoulement claimants does not render it an untrue or unreasonable explanation for the late appeal. In this regard, we note that the Board did not disbelieve the explanation.  Rather, the Board found the given reason “unacceptable” ([19] of the Board’s Decision). We have difficulty with such assessment.  The applicant’s inability to read, especially, English would mean that he would not appreciate the notes about the time limit for appeal until he could locate someone who could interpret and explain them to him.

23.  Further, as the last of the 3-stage enquiry alluded to in The Secretary of State for the Home Department v Begum, on which the Board had directed itself at [16] of the Board’s Decision, even where there is a serious or significant breach for which no good reason is given, the decision maker should move to evaluate all the circumstances of the case that he knows of. 

24.  In identifying what circumstances are relevant, it is imperative to bear in mind that the discretion to allow the late filing of a notice of appeal is exercisable when it would be “unjust” not to do so by reason of “special circumstances”: see s 37ZT(3) of the Ordinance.

25.  It is in this connection that we cannot agree with the Board or the Judge that merits need not or should not be considered (see Board’s Decision at [21] and Call-1 Form at [37]).  In our opinion, it would be unjust not to allow the late filing of a notice of appeal where the appeal is meritorious.  Indeed, nothing would be more unjust.

26.  The Board should have, under s 37ZT(2)(b) of the Ordinance, taken account of the merits of the appeal (albeit on paper without a hearing) regardless of the procedural breaches or the lack of explanation therefor.  See Re Khan Kamal Ahmed, CACV 563/2018, [2019] HKCA 377, 2 April 2019, [16]-[20].

27.  For these reasons, we are of the view that the intended application for judicial review is reasonably arguable, meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

28.  We are mindful of the fact that this is not exactly how the applicant argued this appeal in his notice of appeal or submission.

29.  As stated in paragraph 19 above, the Court of Appeal considers the decision of the judge at first instance in light of the grounds of appeal raised by the applicant.  We have no intention to derogate from such principle.  Nevertheless, this Court has a discretion, not to be exercised lightly, to allow new grounds to be canvassed in the interest of justice.  See, for example, Re MD Zahidur Rahman Manik, CACV 314/2018, [2018] HKCA 766, 29 October 2018; and Re Khan Kamal Ahmed, supra.

Disposition

30.  We would therefore allow the appeal and grant leave to the applicant to apply for judicial review. 

31.  In accordance with Order 53 rule 5 of the Rules of the High Court (Cap 4A), the applicant should file and serve an originating summons within 14 days from the date of this judgment.  The originating summons should set out the grounds (1) that the Board’s findings that the applicant’s delay was serious and significant and that the applicant would have no good reason for the breach were Wednesbury unreasonable; and (2) that the Board had failed to consider the substance of the applicant’s non-refoulement claim, which is a relevant matter of fact within the Board’s knowledge within the meaning of s 37ZT(2)(b) of the Ordinance.