MIZAN JARDER v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1345/2023

[2023] HKCFI 2502

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1345 of 2023

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;

1.  Legal aid stay is lifted with effect from 7 September 2023;

2.  Extension of time to apply for leave to apply for Judicial Review is refused; and

3.  Leave to apply for Judicial Review is refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 3 August 2023 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 19 November 2021 (the “2021 Decision”) refusing his application for late filing of a Notice of Appeal/Petition (“NOAP”).

2.  The Applicant is a Bangladeshi national.  He left Bangladesh in March 2007 for China from where he sneaked into Hong Kong. He was arrested on 21 August 2008.  He then made a torture claim.  On account of all sequential changes in the procedural rules and practices in the handling of such claims, the screening process of his claim was not completed until October 2014.  His claim was assessed on three applicable grounds under the Unified Screening Mechanism (“USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; and Persecution Risk[3].  By his Notice of Decision dated 15 October 2014 (the “Notice”) the Director of Immigration (the “Director”) rejected his claim.

3.  On 8 December 2014, the Applicant filed a NOAP against the Notice.  It was filed one month and eight days out of time.  Having considered the relevant provisions under the Immigration Ordinance and the Applicant’s explanation for the late filing, the Board refused the late filing by its decision dated 29 January 2015 (the “2015 Decision”). All these decisions are now final.  They are mentioned by way of background.

4.  On 4 January 2017, the Director invited the Applicant to submit additional information, if any on or before 18 January 2017, which he considered relevant to his claim on all applicable grounds, specifically including BOR 2 Risk[4] ground.  The Applicant did not respond.  Then, the Director issued a Notice of Further Decision dated 23 January 2017 (the “Further Notice”) dismissing the Applicant’s claim under BOR 2 Risk ground.

5.  More than four and half years later, the Applicant filed another NOAP by post with a stamp which indicates that it was mailed on 29 September 2021.  The NOAP did not identify the decision in respect of which the appeal was sought nor did the Applicant enclose a copy of the decision.  Having made enquiries with the Immigration Department and checked its own record, the Board was able to identify the decision sought to be appealed is the Director’s Further Decision.  Having considered the relevant provisions under the Immigration Ordinance and the Applicant’s explanation for the late filing, the Board issued a Decision dated 19 November 2021 (the “2021 Decision”) refusing the late filing which was filed more than four years and seven months out of time.

6.  More than one year and nine months later, the Applicant filed the present leave application seeking to judicially review the 2021 Decision.  According to section 21K(6) of the High Court Ordinance and Order 53, rule 4(1) of the Rules of the High Court, this leave application was filed more than one year and six months out of time. 

7.  A Memorandum of Notification of an Application for Legal Aid dated 8 August 2023 was filed with the Court.  In the normal course, his leave application shall be stayed until 18 September 2023. On 8 August 2023, the Applicant also filed an application for the writ of habeas corpus in HCAL 1383/2023 which was scheduled to be heard on 19 September 2023. 

8.  Having considered the nature of the leave application and issues raised, the 2021 Decision, the papers, and all the circumstances, the Court considered the leave application may be justly determined on paper without an oral hearing.  Even putting aside the issue of late filing, on the basis of the Applicant’s assertions and incontrovertible facts the Court reached a strong provisional view that the intended judicial review has no prospect of success. Subject to the question of legal aid stay under Section 15 and Regulation 7A of the Legal Aid Ordinance, it would be expedient and to the benefit of both parties to the habeas corpus proceedings to dispose of this leave application well before the habeas corpus proceedings.  Thus, despite the legal aid stay, the Court ordered a hearing on 7 September 2023[5] to determine whether legal aid stay should be lifted and the leave application disposed of.  After the hearing, the Court came to the conclusion that it was indeed expedient to do so.  However, on the afternoon of 14 September 2023, the day before the Form CALL-1 was to be issued, this Court was informed that the habeas corpus proceedings were discontinued.  With the urgency removed, the decision on the leave application was reserved and the issue of this Form CALL-1 was deferred to 19 September 2023 as if the legal aid stay had run its course, just in case the Applicant’s legal aid application was successful.

Lifting of the legal aid stay

9.  In the normal course of event, the legal aid stay is due to be lifted shortly.  The sole reason for considering lifting the stay is the absence of merits in the leave application and to enable the habeas corpus proceedings to proceed with expediency.  It would be to the interest of all parties to those proceedings to be informed of the outcome of this leave application as early as possible.   

10.  The Applicant commenced his non-refoulement proceedings on 27 August 2008.  He has an appalling record of delaying the proceedings.  He is triple late in appealing against the Notice (one month and eight days out of time), the Further Notice (four years and seven months late), and now in seeking leave to apply for judicial review (more than one year and six months late).  The delay totaled almost six years and three months.  This fact together with the lack of merits in the lave application cast a serious doubt on whether the delays were deliberate and calculated for some ulterior motive.

11.  The Court is aware of the usual benefits a claimant will have if afforded legal aid.  The Applicant had lived in Hong Kong for 15 years since his arrest.  He had undergone all the various non-refoulement proceedings.  He had the services of the Duty Lawyer Service.  He was legally represented in the screening interview, which probably was the most important stage in the non-refoulement process.  He had all the benefits that legal representation could have afforded him.  Besides, the high standard of fairness does not require that a claimant should be provided with legal representation at all stages of the process.  For reasons as will become apparent in the analysis of his explanation for the delay in raising this leave application and the grounds of application, there are no merits in his leave application.  The Applicant will obtain no real benefit from legal representation, even if legal aid is granted.  To continue the stay would not be to the benefit of both parties to the habeas corpus proceedings.

12.  Accordingly, notwithstanding section 15 of the Legal Aid Ordinance, the Court lifted the stay forthwith, but decision on the leave application is reserved.

The legal principle applicable to late application for judicial review

13.  In AW and Director of Immigration and William Lam[6], 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 the Court of Final Appeal in Po Fun Chan v Winnie Cheung[7]  also held 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 is so substantial that leave may be refused on this ground alone.  Absent a reasonable explanation for this inordinate delay, this leave application is bound to be refused.  Except for merits which will be considered briefly for completeness, there is no need to consider the other two factors which on the facts of this application carry relatively insignificant weight.

Explanation for the delay

14.  The Applicant’s explanation for his delay in taking out this leave application as stated in his supporting affirmation is as follows:

“The judgment of the Torture claim appeal Board was ruled on 23 January 2017. In 2018 August I was arrested. Therefore I did not know the Judgment at the time. This is the reason why my application so appeal has already been out of time.”

15.  This explanation is related to his late filing of the NOAP which had been very carefully considered and rejected by the Board in the 2021 Decision.  Obviously, the fact that he was put in prison nineteen months after the issue of the Further Notice does not explain the more than one year and three-month delay in taking out this leave application.  In all fairness to the Applicant, the Applicant was invited to proffer his explanation at this hearing.  All that requires is a factual explanation and he would not be prejudiced for lack of legal representation.

16.  The essence of the Applicant’s explanation is that he was detained in Tai Tam Gap Correctional Institution from 21 August 2021 until 5 September 2023 during which period he received the 2021 Decision and he had no money to file the leave application and did not know the procedure.  He started contacting his friends for help two to three months after receiving the 2021 Decision and obtained funds from his family in mid-2022.  Eventually, the leave application was filed on 1 August 2023.  He could not obtain assistance from the Welfare Officer because the Welfare Officer cannot speak Bengali and he could not speak English.  The Welfare Officer was not assisted by an interpreter and had to rely on assistance from other inmates.  The Welfare Officer only gave or collected documents from inmates.  The Applicant had to complete the Form 86 by himself with assistance from other inmates.  He said he was able to live his life in prison because there was a community of about twenty Indian, Pakistani and Bengalese who could speak some common language.  One or two of them had experience in applying for judicial review.

17.  The Applicant’s allegations against the Welfare Officer and about lack of interpretation service is contrary to the Court’s understanding of prison conditions.  It is hardly credible.  But even accepting his explanation in its entirety, that does not explain why he did not start contacting his friends or family for financial help until two to three months after the 2021 Decision was received and why after having obtained funds from his family in mid-2022 it took him more than one year to file the leave application.  Even assuming the Welfare Officer was as unhelpful as alleged, he had language assistance since the arrival of the English speaking Bengalese inmates a few weeks after he received the 2021 Decision (say, in late December 2021) to understand the 2021 Decision and to prepare his grounds of application.  Allowing him a few months to get acquainted with this Bengalese inmate and to secure his assistance, he would have at the latest by March 2022 prepared the Form 86. With funds being available in mid-2022 and allowing for a couple of weeks for him to arrange to meet the Welfare Officer and for the officer to file the Form 86, he would have completed the filing well before August 2022.  This Court is mindful of the difficulties, including lack of financial, legal and language assistance, facing a foreign asylum seeker.  But even with the generous allowance assumed above, the Applicant could not explain why it took him more than a year to file the Form 86 since obtaining finance in mid-2022.  In the circumstances, the long delay and lack of explanation is fatal.  His case is precisely the sort of case to which the Court of Final Appeal dicta in Po Fun Chan v Winnie Cheung is applicable.  For this reason, the leave application cannot even get off the ground. 

18.  The long delay is incontrovertible.  The Applicant could offer no reasonable explanation for the delay.  The Court of Final Appeal decision is binding on this Court.  The Applicant’s application for extension of time to apply is doomed to fail.  His leave application is bound to be dismissed.  No legal representation could have changed the precedent determined by the Court of Final Appeal and this outcome. 

The legal principles applicable to judicial review

19.  The function 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 and viability of internal relocation.  In an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality:  see Nupur Mst v Director of Immigration[8]. Thus, absence specific grounds or grounds with sufficient particulars, the Court would focus its attention on possible criticism of the Decision on the basis of error of law, unreasonableness and irrationality.

Grounds of application and prospect of success of the intended judicial review

20.  As no extension of time to apply is granted, it is unnecessary to consider merits of the leave application.  It is nevertheless considered hereunder for completeness and to further justify the lifting of legal aid stay.  

21.  The Applicant advanced the following four grounds of application for judicial review:

(1)  The Director’s Further Notice and the Board’s 2017 Decision were made without giving him an oral hearing and “even I was outside I didn’t receive on my home address”;

(2)  He has evidence in support of his non-refoulement claim which he could not obtain as he was held in custody; he had to apply for judicial review so that he could later find his family and arrange for his evidence;

(3)  He was held in prison custody in 2018 and did not have money or proper state of mind to apply for judicial review; and

(4)  His life will be seriously at risk in Bangladesh.

These grounds must be considered in the context of this leave application which is to apply for leave to judicially review the Board’s 2017 Decision relating to its refusal to allow late filing of the NOAP.  Merits of the Director’s Further Notice which the Applicant sought to challenge if late filing is allowed is totally irrelevant.  Thus, except for Ground (1), which arguably is marginally relevant, the other grounds are totally irrelevant.

22.  The first thrust of the Applicant’s complaint under Ground (1) is that the Director’s Further Notice and the Board’s 2017 Decision were made without giving him a chance to be heard.  The decision of which the Applicant seeks to judicially review is the Board’s 2017 Decision refusing his late filing of the NOAP.  The quick and complete answer to his complaint is section 37ZT(2) of the Immigration Ordinance (the “Ordinance”)which mandates the Board to decide whether to allow the late filing as a preliminary decision without a hearing.  That precisely is what the Board was required to do and did.

23.  As for the Director’s Further Notice, it was the Applicant who chose not to furnish any further information as requested by the Director in his letter dated 4 January 2017 in which he had been informed that a decision will be made if he has not produced any relevant fact by 18 January 2017. In any event, that Further Notice is not the subject matter of the leave application.

24.  The second thrust of the Applicant’s complaint under Ground (1) is that he had never received the decisions.  The explanation he gave in Section 5 of the NOAP for the late filing is:

“Making this appeal on my behalf was delayed owing to my being in prison for three years. Because I can write English and can write Chinese and this is the reason why this late filing was caused. I request you to kindly accept my appeal and given me an opportunity.”

In short, the reason he gave is that he was in prison custody for three years which prevented him from filing the NOAP.  The Court also noted that he meant he could not write English or Chinese and not that he can.  He did not complain in Section 5 that he had never received the Further Notice.  Upon a careful analysis by the Board, the Board rejected his explanation.  It found the Applicant had received the Further Notice while he was at liberty before he was put in prison custody.  At this hearing, the Applicant actually confirmed that was the case.  He was held in Lai Chi Kok Reception Centre since 23 August 2018 because he was framed for a court case. At the time of issue of the Further Notice, he was at liberty.  This is a finding of fact which he may not challenge in a judicial review, save for error of law, procedural unfairness and irrationality.  There is no evidence of no such vitiating elements.  It is also an incontrovertible fact. 

25.  The Applicant had been given clear advice in the Notice and Further Notice that if he is aggrieved by the decision, he must appeal within 14 days of the receipt of the decision.  He was also provided the address of the Board for filing the NOAP and a copy of NOAP form.  In fact, he had experience in making late filing of NOAP in relation to the Director’s Notice.  That application was one month and eight days out of time.  His late filing was refused by the Board.  By reason of that experience, the Applicant could have no misunderstanding that he must file the NOAP within 14 days of receipt of the decision if he is aggrieved by the decision, otherwise he had to give an explanation for the late filing and run the risk of being refused such late filing.  With that experience in 2015 in his mind when he gave his explanation for late filing in Section 5 of the NOAP in 2017 he would not have missed this very important explanation if in fact he had not received the Further Notice at all.  At this hearing, he tried to distant himself from that explanation by saying that he did not write the explanation in Section 5 of the NOAP, but he had to admit that it was written by someone on his instruction.  There is no merit in this ground.

26.  As for the additional evidence mentioned in Ground (2) in respect of which the Applicant asks for time to obtain, it is related to his non-refoulement claim.  It must be emphasized that the subject matter of this leave application is the Board’s 2021 Decision refusing his late filing of NOAP.   Merits of the claim are not in issue for the purpose of this leave application.  Besides, the Applicant had raised his non-refoulement claim in 2008.  It was rejected by the Director’s 2014 Notice.  In between he had six years to collect evidence in support of his claim.  He had another nine years since then and now to collect evidence.  In all these fifteen years (albeit part of which was spent in prison), he should have collected all the evidence that he need.  He has not identified what evidence he wishes to collect and has not explained why he could not have obtained it back in 2021.  Furthermore, he now claims he wants to apply for judicial review so that he could be released from custody to contact his family to arrange for the evidence.  That is a patent admission of abuse of legal process.  There is no substance in this ground.

27.  In Ground (3), the Applicant said he had no money and no proper state of mind to apply for judicial review.  The facts alleged under this ground have been overtaken by subsequent events. The Applicant had in fact obtained funds to file the leave application and has already filed the Form 86.  His lack of a proper state of mind to apply obviously referred to his condition in 2018 and not after he had actually filed his leave application in August 2023.  His lack of funds and proper state of mind cease to be of any relevance now and certainly cannot support his application for leave to apply for judicial review.  Insofar as this ground may amount to an explanation for the late application, for reasons as explained in paragraphs 10 to 14, it could not be substantiated.

28.  Lastly, whether his life will be at risk in Bangladesh as suggested in Ground (4) goes to the merits of the Notice, which is now final and beyond judicial review or the Further Notice which is still binding, not having been overturned by the Board.  It is irrelevant for this leave application.

29.  Having rigorously examined the 2021 Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the relevant provisions of the Immigration Ordinance and key legal principles relating to the late filing of the NOAP and observed a very high standard of fairness.  Obviously, the Board understood the burden of proof and standard of proof.  It had carefully considered the Applicant’s explanation for the late filing and carefully analyzed the incontrovertible facts.  By logical deduction from the Applicant’s failure to report his recognizance since 13 September 2018 and the record of his imprisonment, the Board found that he was at liberty for the period between 18 October 2015 and 16 August 2018.  At this hearing, the Applicant confirmed that he was indeed at liberty until 23 August 2018.  He could not have any complaint about this finding of fact by the Board.  On this finding and the Applicant’s explanation in Section 5 of the NOAP, the Board further found he had received the Further Notice issued on 23 January 2017.   This is a finding of fact solely within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality.  The Court could detect no errors of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings.  The Board’s Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable or irrational.  The Decision was utterly without fault.  The Applicant’s claims are not reasonably arguable.  There is no realistic prospect of success in the proposed judicial review. 

30.  The above conclusion is reached on the basis of incontrovertible facts and the Applicant’s own assertions.  No legal representation could have changed this outcome. 

Conclusion

31.  For the above reasons, legal aid stay is uplifted forthwith, extension of time to apply for leave to apply for judicial review is refused, and the leave application is also 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