KHAN KAMAL AHMED v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 899/2017

[2018] HKCFI 2145

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 899 of 2017

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 the Applicant being present/absent in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

1.  This is an application for judicial review of the decision of the Adjudicator to refuse late filing of a Notice of Appeal.  As the background to the matter is of relevance to that decision, the Applicant’s immigration history and a short summary of his basis of claim have been included.

Procedural history

2.  The Applicant first entered Hong Kong illegally from China on 3 January 2014.  He was arrested on the same day.  He raised a non refoulement claim (“NRF”) by way of written representation on 5 January and was released upon recognisance on 24 January 2014.  His NRF claim form was submitted on 5 October 2015.

3.  The Applicant attended a screening interview on 4 December 2015.  The Director of Immigration (“the Director”) dismissed his claim (not including that under BOR 2) by Notice of Decision (“the Decision”) on 22 January 2016 and by Notice of Further Decision (re BOR 2) on 22 November 2016.  The Applicant filed his Notice of Appeal, which was out of time, on 13 June 2017.  The adjudicator of the Torture Claims Appeal Board, Mrs Helena Lee (“the Adjudicator”), considered the application for late filing as a preliminary matter.  The Adjudicator refused that application on 31 October 2017.

4.  The Applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review against the decision of the Adjudicator on 16 November 2017 and did not request an oral hearing.  The matter was therefore considered on the papers.

Background

5.  The Applicant is a Pakistani national.  He was born on 26 January 1991, in the Punjab.  He is single, has received eight years of formal education and worked as a truck conductor.  The Applicant was a supporter of Pakistan Tehreek-e-Insaf (“PTI”).  During the general election of 2013, the Applicant maintains that he was involved in a scuffle with members of the Pakistan Muslim League (Nawaz) (“PML(N)”) whom he and fellow PTI supporters had seen committing an election fraud.  The incident, which lasted no more than 10 minutes, was brought to an end by the police.  The applicant received a wound to his thumb, which required 12-13 stitches and also injury to his leg.  Although, it is not entirely clear from the papers, during the same incident, the Applicant suggests that a man called Ikram was shot by a PML(N) member and was rushed to hospital but died.  The Applicant went to the police after his release from hospital and made a report about the incident.  The alleged shooter “Jabar”, was arrested and detained before being given bail some two days later.  In the ensuing two to three months, the Applicant was harassed by friends of Jabar in an attempt to dissuade him from giving evidence against him.  The Applicant did report these threats to the police but no formal report was made.  In July 2013, the Applicant and another man called “Waseem” gave evidence in the murder trial and Jabar was convicted.  In August 2013, Waseem was murdered.  The Applicant believes it was in revenge for giving evidence against Jabar.  The Applicant therefore applied for a passport and went to Karachi to stay with a friend before leaving for China on 28 December 2013.

Decision of the Adjudicator

6.  The filing of the Notice of Appeal was late.  The Applicant had 14 days to file a Notice of Appeal[1], the deadline for which was 5 February 2016, for the Decision and 6 December 2016, in respect of the Further Decision.  The Notice of Appeal was dated 13 June 2017.  It was one year four months and eight days late in respect of the Decision and seven months and seven days in respect of the Further Decision.

7.  The Adjudicator noted that the statutory regime for the late filing of the Notice of Appeal is strict.  The burden was upon the applicant to establish his claim and to comply with the time limit[2]. The Applicant had stated that he had received the Decision but had lost it.  He made no mention of the Further Decision and gave no reasons for the failure to file his Notice of appeal in time save for that.

8.  The Adjudicator’s discretion to permit late filing of a Notice of appeal is regulated under section 37ZT of the Immigration Ordinance, Cap 115.  The Board may only take into account the statement of reasons provided in the application for late filing; the documentary evidence in support of the statement of reasons and other relevant matters of fact known to the Board.  The Adjudicator may allow the late filing of the notice of appeal where it would unjust to refuse his application[3].

9.  The process of consideration of an application for late filing of a Notice of Appeal is carried out without a hearing[4] by way of preliminary decision. The Adjudicator set out subsection 1-4 of s37ZT. In The Secretary of State for the Home Department v Begum (2016) EWCA Civ 122, 3 March 2016 the court alluded to a three-stage approach which is:

(i) 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 stage.

(ii) 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.

(iii) 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 riles, practice and directions and court orders.

10.  The Adjudicator considered the chronology of events as submitted by the Director and found that no good reason for the late filing had been given.  She noted the significant time delay; that the relevant documents had been sent to the Applicant by the DLS and the Further Decision had been sent to the applicant’s last known address and that no sufficient reason had been given for why he had failed to file the notice of appeal within time.  At that stage the Adjudicator said “As K had not provided any reason for his delay, the Board has no basis on which to exercise any statutory discretion to extend the time limit”.  That is not correct.  It was open to the Adjudicator to consider subsection (3) of section 37ZT and the guidance given at (iii) above.  That required the Adjudicator consider all of the “matters of fact” i.e. circumstances of the case, known to her, so as to deal justly with the application.  Whilst that included consideration of the need for efficient and proportionate costs of litigation and the public policy benefits of enforcing compliance with rules of procedure and practice, it was not limited to those two elements.  It is inherent in matters such as these that the relevant authorities do not lose sight of the underlying potential risk to claimants of danger to their life and liberty if refouled to their home state.  It was incumbent upon the Adjudicator, in the exercise of her discretion, to take the merits of the Applicant’s case into account at this stage, as she was allowed to do under the relevant section, regardless of the breaches of procedure which she found and the lack of explanation for those breaches.  This is more especially important when dealing with foreign nationals whose first language is neither Chinese nor English and who may very well not understand our common law system.

Grounds of review

11.  There were no grounds of review save for a general allegation that the Adjudicator had been unfair.  The Applicant has not complained of any specific procedural irregularity, unfairness or unreasonableness.  The Applicant has a duty to state the grounds of his intended judicial review and that they are reasonably arguable and enjoy a realistic prospect of success: Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.  I have nevertheless considered whether the papers indicate any such ground for the purposes of considering whether to grant leave.  Given the comments above, the issue for this court on this application for leave, is whether the outcome would have been any different if the Adjudicator had considered the underlying merits of his claim and whether, simply remitting this matter back to her upon a successful application for judicial review, will alter the final result in any way.  It will not.  It will merely cause further delay and expense.  The Applicant’s case was not accepted by the Director and, at its highest, did not meet the standard of proof placed upon him.  It does not have sufficient merit to alter the view of the Adjudicator not to grant leave.

Conclusion

12.  In my judgement, whilst there is a reasonably arguable basis upon which the Applicant could found a claim for judicial review of the decision of the Adjudicator to refuse to allow late filing of his Notice of Appeal on the basis that the Adjudicator had a discretion to consider the papers before her and  the merits of the underlying claim,  there would be no realistic prospect of success before the Adjudicator on an application for extension of time to file his notice of appeal if he were to be granted leave.  I therefore refuse leave for judicial 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