RE ASIF MUHAMMAD

HCAL 2783/2018

[2021] HKCFI 1398

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2783 OF 2018

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DECISION

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Introduction

1.  This is the Applicant’s application for leave to apply for judicial review of the decision of the Director of Immigration (the “Director”) dated 30 November 2018.  The Director had not made any decision dated 30 November 2018 regarding the Applicant.  The decision mentioned by the Applicant is in fact a decision (the “2018 Decision”) of the Torture Claims Appeal Board/Adjudicator of the Non-Refoulement Claims Petition Office (the “Board”).  Accordingly, leave is granted to amend his application by substituting the Board for the Director of Immigration.

2.  The Applicant is a Pakistani national.  He sneaked into Hong Kong on 9 December 2013 by boat.  He was arrested by the Police for being an illegal immigrant and referred to the Immigration Department on 11 December 2013. 

3.  On 14 December 2013, he lodged a non-refoulement protection claim by way of a written representation.  His case is that he is the son of the business partner of a Mr Khalid, who was alleged to have killed a member of a certain “group” (the “Group”); has been targeted by the Group for extracting information about Mr Khalid; and will be harmed, tortured or killed by the Group if he is refouled to Pakistan. 

4.  In due course, his non-refoulement claims were assessed on all three applicable grounds then available under the Unified Screening Mechanism (“USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; and Persecution Risk[3].

5.  By a Notice of Decision dated 29 January 2016 (the “2016 Notice”), the Director rejected his claims.  He appealed to the Board against the decision of the Director in the 2016 Notice.  His appeal was dismissed by the Board on 15 May 2017 (the “2017 Decision”).  The Applicant did not pursue those claims further by way of judicial review.  The 2017 Decision of the Board became final.

6.  In the meantime, a further ground for protection became available under the USM, ie BOR 2 Risk[4] ground.  On 31 May 2017, the Immigration Department invited the Applicant to submit additional facts, if any, which he considered relevant to his non-refoulement claims by 14 June 2017, including any other absolute and non-derogable rights under the Hong Kong Bill of Rights Ordinance (“HKBORO”), in particular BOR 2 Risk ground, in case he had omitted any relevant facts before because of any misunderstanding on what “all applicable grounds” meant.  The Applicant was also notified that a further written decision of his non-refoulement claims on any other applicable grounds, taking into account any new facts submitted and all fact submitted previously will be made if he has not produced any relevant facts by the above date.  The Applicant did not respond.

7.  Then, by a Notice of Further Decision dated 6 July 2017 (the “2017 Notice”), the Director informed the Applicant that he had failed to establish a personal and real risk of his absolute and non-derogable rights under the HKBORO including the right to life under BOR 2 being violated upon his return to Pakistan.  The Director specifically reminded him that if he was aggrieved by this further decision, he may lodge a separate and further petition to the Board but he must file his notice of petition within 14 days from the date of the 2017 Notice.  A copy of the notice of petition was enclosed for his convenience.  He was also provided with the address of the Board for filing the notice.

8.  However, it was only until 28 July 2017 that the Applicant filed his petition against the 2017 Notice.  By then, the petition was out of time by 8 days.  It should have been filed by 20 July 2017.  In Section 5 of the Notice of Appeal, the Applicant gave the following explanation for his late application:

“I had pain in my eyes that’s why I couldn’t submit this letter on time. I have proof.”

But he furnished no medical or documentary proof of his eye condition.

9.  On 30 November 2018, pursuant to section 37ZT of the Immigration Ordinance, the Board dismissed his petition on the ground that there were no special circumstances which would make it unjust not to allow the late filing of notice of appeal/petition.  On 6 December 2018, the Applicant applied for leave to apply for judicial review against the 2018 Decision of the Board.

10.  The Applicant’s ground of application is that the 2018 Decision is unfair.  He did not give particulars.  I assume that he seeks to challenge the decision on all possible grounds, namely procedural unfairness, error of law, Wednesbury unreasonableness and irrationality.  He did not request an oral hearing.  Having considered the papers, I am of the view that this application may be determined on paper without an oral hearing. 

The law – Function of the court in judicial review

11.  The function of the court in judicial review is not to re-assess the non-refoulement claim 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 claims, risk of harm, availability of state protection and viability of internal relocation.  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[5].

The law – late filing of notice of appeal

12.  The appellate regime relating to non-refoulement claims under the Immigration Ordinance permits a claimant to appeal to the Board against the decision of the Director refusing his claim within 14 days of the decision of the Director: see section 37ZS.  The section sets out the procedures for dealing with a notice of appeal filed after the expiry of the 14-day period. This section provides as follows:

“37ZT. Late filing of notice of appeal

(1) If a notice of appeal is filed after the expiry of the 14-day period referred to in section 37ZS(1), it must include an application for late filing of the notice, which—

(a) must include a statement of the reasons for failing to file the notice within that period; and

(b) must be accompanied by any documentary evidence relied on in support of the reasons referred to in paragraph (a).

(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.”

13.  It is obligatory for the claimant to furnish a statement of reasons for the late filing and to provide documentary evidence wherever available.  It is mandatory for the Board to decide as a preliminary decision without a hearing whether to allow the late filing.  The Board shall only make its decision on the basis of the statement of reasons and accompanying documents furnished by the claimant and the relevant matters of fact within the Board’s own knowledge.  The test is whether there are special circumstances which would make it unjust not to allow the late filing of the notice of appeal.  To answer that question, the court adopts the three stage approach laid down in The Secretary of State for the Home Department v Begum[6]:

“As noted by Richards LJ in the latter case a judge must approach an application for relief from sanction in three stages as follows:

i) The first stage is to identify and assess the seriousness or significance of the failure to comply with the rules. The focus should be on whether the breach has been serious or significant. If a judge concludes that a breach is not serious or significant, then relief will usually be granted and it will usually be unnecessary to spend much time on the second or third stages; but if the judge decides that the breach is serious or significant, then the second and third stages assume greater importance.

ii) The second stage is to consider why the failure occurred, that is to say whether there is a good reason for it. It was stated in Mitchell (at para. [41]) that if there is a good reason for the default, the court will be likely to decide that relief should be granted. The important point made in Denton was that if there is a serious or significant breach and no good reason for the breach, this does not mean that the application for relief will automatically fail. It is necessary in every case to move 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. The two factors specifically mentioned in CPR rule 3.9 are of particular importance and should be given particular weight. They are (a) the need for litigation to be conducted efficiently and at proportionate cost, and (b) the need to enforce compliance with rules, practice directions and court orders.  As listed in para. [35] of the judgment in Denton:…’”

The Board has to consider (i) seriousness of the breach; (ii) reasons for the breach; and (iii) an evaluation whether in all the circumstances of the case known to the Board that it would be unjust not to grant the extension of time.  It is certainly unjust not to grant extension of time to enable a meritorious appeal to proceed.

14.  The operation of section 37ZT came before the Court of Appeal in Re Qasim Ali[7].  The Court of Appeal adopted the test in Begum and held that a delay of eight days cannot on any view be regarded as serious or significant and the Board’s decision to that effect was Wednesbury unreasonable.  It also held that 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. 

15.  The Court of Appeal did not discuss whether it is necessary to carry out an evaluation where the delay was not serious or where a good reason for the delay was given.  In Begum, the English Court of Appeal said if the breach is not serious, it will usually be unnecessary to spend much time on the second or third stages; and if there is a good reason for the default, the court will be likely to decide that relief should be granted.  The court was cautious not to make an over sweeping statement.  In my view, Begum should not be understood as laying down any principle that there is no need to investigate into merit if the breach is not serious and/or there is a valid explanation for the breach.  The seriousness of the breach and the presence or absence of a valid explanation may have an impact in deciding whether it is unjust not to allow the late filing.  If the breach is not serious and there is a valid explanation, it would take very little to persuade the Board that it would be unjust not to allow the late filing.  On the other hand, the more serious the breach, the higher is the threshold required to persuade the Board.

16.  The use of the phrase “unjust not to allow the late filing” in section 37ZT(3) suggests that the discretion shall usually be exercised in favour of extension. Particularly, if there is a good reason for the delay, the claimant should be put in the same position as if he has committed no breach.  Under the non-refoulement regime, a claimant is entitled, regardless of merits, to have his claim reviewed by way of rehearing before a higher level decision maker, ie the Board.  However, the circumstances in which the breach may arise are innumerous; so are the explanations.  There may well be cases in which an appeal is so devoid of merits or hopeless that it would not be unjust not to grant extension of time just to enable a notice of appeal to be filed and then for the appeal to be dismissed.  That probably was the rationale behind the cautious statement in Begum.

The law – BOR 2

17.  The decision which the Applicant sought to appeal against is the decision of the Director in the 2017 Notice.  In that notice, the Director decided that the Applicant had failed to establish a personal and real risk of his absolute and non-derogable rights under the HKBORO being violated (including the right to life under BOR 2), upon his return to Pakistan.

18.  Article 2 of section 8 of HKBORO (i.e. “BOR 2”) gives legal effect to Article 6 of the International Convention on Civil and Political Rights (“ICCPR”).  BOR 2 provides:

“(1) Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.

(2) Sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of this Bill of Rights and to the Convention on the Prevention and Punishment of the Crime of Genocide. This penalty can only be carried out pursuant to a final judgment rendered by a competent court.

(3) When deprivation of life constitutes the crime of genocide, nothing in this article shall authorize the derogation in any way from any obligation assumed under the provisions of the Convention on the Prevention and Punishment of the Crime of Genocide.

(4) Anyone sentenced to death shall have the right to seek pardon or commutation of the sentence. Amnesty, pardon or commutation of the sentence of death may be granted in all cases.

(5) Sentence of death shall not be imposed for crimes committed by persons below 18 years of age and shall not be carried out on pregnant women.

(6) Nothing in this article shall be invoked to delay or to prevent the abolition of capital punishment in Hong Kong.”

19.  Article 2(1) provides that the right to life is inherent in any human being and shall be protected by law.  Article 2(2) to 2(6) provide for the circumstances when a person may be lawfully deprived of his life and the safeguards against unlawful deprivation.  In Osman v United Kingdom[8], the European Court of Human Rights noted, in the context of the equivalent European Convention article[9], that the article enjoins the contracting state not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction.  The court went on to say that the article may imply in certain well-defined circumstances a positive obligation on the authorities to take preventative operational measures to protect an individual whose life is at risk from the criminal acts of another individual.  However, such an obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities[10]. Thus, it must be the obligation of the state parties to the ICCPR to legislate and to protect the right of life of any human being within their territories.  As was held by Lord Hope in in Horvath v Secretary of State for the Home Department[11] in the context of a home state’s obligation in protecting its own nationals from persecution by non-state agents, the standard of protection is not an absolute standard but the practical standard.  Lord Hope said:

“The primary duty to provide the protection lies with the home state. It is its duty to establish and to operate a system of protection against the persecution of its own nationals. If that system is lacking the protection of the international community is available as a substitute. But the application of the surrogacy principle rests upon the assumption that, just as the substitute cannot achieve complete protection against isolated and random attacks, so also complete protection against such attacks is not to be expected of the home state. The standard to be applied is therefore not that which would eliminate all risk and would thus amount to a guarantee of protection in the home state. Rather it is a practical standard, which takes proper account of the duty which the state owes to all its own nationals. As Ward L.J. said, at p. 44G, under reference to Professor Hathaway's observation in his book, at p.105, it is axiomatic that we live in an imperfect world. Certain levels of ill-treatment may still occur even if steps to prevent this are taken by the state to which we look for our protection.”

20.  In the non-refoulement context, a state party is under an obligation not to send or return a foreign national to a state where his life would be at risk because there is no or no sufficient protection afforded by the government concerned.  In this context, there is no room for any argument that this obligation should be construed to cover risks of other harm related to human rights abuses.  The impression obtained from a fair reading of the article is that its purpose is to protect the right to life and safeguard against unlawful capital punishment in a non-refoulement context.  It is difficult to read into the clear wordings of the article protection against risks of other un-particularized forms of human rights abuses.  Under our non-refoulement arrangements, it is not necessary to argue on this construction point because those other forms of abuses are covered by the other three applicable grounds under the USM. 

21.  Thus, on the true and proper construction of BOR 2, to invoke this ground, the claimant has to bear the legal burden of showing the risk of violation of his right to life by the government of the country to which he would be returned.  This risk only arises if there is no or no sufficient protection of his right to life afforded by the government concerned. 

The 2018 Decision and the Board’s approach

22.  The Applicant was six days late in lodging his Notice of Appeal.  The reason he gave for the delay was that he was suffering pain in his eyes.  He did not give particulars.  He said he had proof but he did not provide any.  The Board did not consider that a good reason.  Then it proceeded to consider whether there were special circumstances by reason of which it would be unjust not to allow the late filing.  Essentially, the Board called upon its own knowledge of the 2017 Decision made by another adjudicator.  Then having regard to the totality of the evidence, the Board was of the view that there was no merit in the intended appeal and hence concluded that there were no special circumstances by reason of which it would be unjust not to allow the late filing.  The Board followed the procedure set out in section 37ZT and the Petition Guide to the letter.  Even though the Board did not mention Begum, it effectively adopted the three-stage approach in that case.  There was no procedural unfairness. 

Seriousness of breach and explanation for breach

23.  The Applicant was six days late.  The Board did not make an express ruling whether the breach was serious and went straight into the second stage of the analysis.  I am bound by Re Qasim Ali.  The delay cannot on any view be regarded as serious.  The Applicant passed the first stage of the Begum test.  But nothing turned on that fact for Begum should not be understood as laying down any principle that if the breach is not serious, the claimant is entitled to extension of time.  It only suggested that it would usually be unnecessary to spend much time on the second or third stages, not that these two stages may be dispensed with altogether. The standard of proof is lower.

24.  In the second stage of the analysis, the Board gave the following reasons why it rejected the Applicant’s explanation. It said[12]:

“12.  The difficulty here is that “pain in the eye” might affect a person’s ability to submit an appeal on time or it might not.  If the Petitioner claims that he was unable because of a medical condition to lodge his appeal on time, he could and should submit a medical report in support.  He has had ample time to do so since July 2017 but he has not.  So the reason given for lateness is not convincing.  There is no good reason to allow the late filing.”

25.  I can well understand the Board’s frustration facing the casual attitude of the Applicant.  The Applicant was required to produce supporting documents.  He said he had such proof but chose not to produce it or tell the Board what it was.  The Board was required to consider whether to give him indulgence on the basis of its own knowledge of the relevant matters and that single, unsupported and un-particularized assertion and nothing else.  In effect, the Board was asked to guess what was the reason for the delay or give a reason for the delay for the Applicant.

26.  The Applicant said he had proof.  Hence, it was reasonable for the Board to take the view that if he claimed he was unable because of a medical condition to lodge his appeal on time and he had proof, he could and should submit such proof, be it a medical report or sick leave certificate or whatever.  He had had a year and half to do so before the Board made its decision; but he did not.  It was therefore open to the Board to come to the conclusion as it did that the reason given was unconvincing or untrue.  The Board’s 2018 Decision could not be criticized as being Wednesbury unreasonable or irrational. 

27.  Despite the Board’s finding that the Applicant had no valid explanation for the delay, it did not jump to the conclusion that his application be refused.  It investigated into the merits.  It was only upon that further consideration and finding that there was nothing to support a BOR 2 Risk claim that the Board came to the conclusion that there were no special circumstances by reason of which it would be unjust not to allow the late filing.  In effect, the Board did what was required under the third stage of the Begum analysis.  The Board’s approach could not be criticised as being procedurally unfair, Wednesbury unreasonable or irrational. 

Merits of the intended appeal

28.  Having rejected the explanation given by the Applicant, the Board called upon its own knowledge of the factual circumstances of the case.  It should also be recalled that the Applicant did not respond to the Director’s invitation to submit new relevant facts in relation to the BOR 2 Risk ground.  Thus, there were no new facts relating to the BOR 2 Risk ground before the Board.  The Board then referred to the 2017 Decision relating to the other three applicable grounds made by another adjudicator and the Notice of Appeal intended to be filed by the Applicant.  Then the Board concluded that as the Applicant had adduced no further relevant facts in relation to his BOR 2 Risk ground and his Notice of Appeal added nothing new, there was nothing which might support a BOR 2 claim beyond the facts already considered under the 2017 Decision.  In other words, the Board considered there was no merit in the intended appeal.  The Board said:

“13. I have to consider whether there are special circumstances by reason of which it would be unjust not to allow the late filing.

14. The Petitioner’s non-refoulement claim on the original grounds was refused by the Director and that refusal was confirmed on appeal. I have read the appeal decision and know the issues raised by the Petiioner and considered by the Adjudicator in that case. As appears from the Adjudicator’s decision, the Petitioner claimed that he had been targeted by a group (“the Group”) for information on a Mr Khalid against whom there was an allegation of unlawful killing, and if refouled to Pakistan he would be harmed or killed by the Group.

15. While I cannot at this stage consider the merits of the Petitioner’s claim of BOR 2 risk, I note that the Petitioner has advanced no further relevant facts beyond those considered in USM 3079 [ie the 2017 Decision]. In his Notice of Appeal he claims that the Group had recently gone to his home and asked when he would return, and if he went back they would kill him. However this indicates nothing new or which might support a BOR 2 claim, beyond the facts already considered in USM 3079 [ie the 2017 Decision].

16. There are no special circumstances by reason of which it would be unjust not to allow the late filing.” 

29.  Whether the 2018 Decision is reviewable depends on whether the Board was correct in its assessment of the merits of the intended appeal.  On the proper construction of BOR 2, this risk is not engaged.  First, on the Applicant’s own case, his risk comes from the Group and not the Pakistani government.  There is no evidence that Pakistan is in breach of its international obligation under ICCPR. There is, therefore, no question that the Applicant’s right to life would be at risk of violation by the Pakistani government.  Thus BOR 2(1) is not engaged.  Second, it is not the Applicant’s case that he is being charged with any criminal offence attracting capital punishment.  Thus BOR 2(2) to (6) are not engaged.

30.  Just for the sake of argument, even on the basis of the wider construction of BOR 2, which I do not accept, the Applicant is unable to prove BOR 2 Risk ground.  In the 2017 Decision, the Board accepted the Applicant’s factual case summarized in paragraph 3 above, except his assertion of fear and risk of harm, torture or death.  In relation to his fear and risk of torture, given the frequency, duration and severity of injuries of past ill-treatments, the Board was not satisfied that the ill-treatment amounted to torture as defined under section 37U of the Immigration Ordinance[13]. In respect of the BOR 3 Risk and Persecution Risk, the Board did not accept that there was a real chance that the Group will kill or attempt to kill the Applicant[14] or to subject him to persecution for one or more of the five reasons under the 1951 Convention relating to the Status of Refugees[15], if refouled to Pakistan.  These findings by the Board are final and binding on the Applicant.  Thus, on the evidence as it stands, the Applicant is unable to prove he has any genuine fear or risk of death, harm, torture or persecution to support a claim under BOR 2 Risk ground.

31.  The Applicant has been invited to submit any new or additional facts in support of his claim under BOR 2 Risk ground.  He did not respond.  The Board was extremely careful.  It even took into account his assertion in his Notice of Appeal in which he claimed that the Group had recently gone to his home to look for him and renewed the threat to kill him.  As the Board rightly held, this indicates nothing new and does not support a BOR 2 Risk claim, beyond the facts already considered in the 2017 Decision which is now final.

32.  For all these reasons, the Board held that the intended appeal had no prospect of success.  Though the breach is not serious, there is no valid explanation for the delay.  In the eventual analysis, the intended appeal has no prospect of success.  It would serve no purpose granting extension of time to lodge a late appeal which is bound to fail.  Hence, the Board came to the conclusion that there were no special circumstances by reason of which it would be unjust not to allow the late filing.  The 2018 Decision is un-reproachable.  There was no error of law in the 2018 Decision of the Board.  The 2018 Decision could not be criticised as being Wednesbury unreasonable or irrational.  There was no procedurally unfairness.

Conclusion

33.  For the above reasons, leave is granted to amend the application by substituting the Board for the Director of Immigration; and the amended application for leave to apply for judicial review of the 2018 Decision of the Board is refused.