IRFAN MUHAMMAD alias MUHAMMAD IRFAN v. WINSTON LEUNG, ESQ

HCAL150/2018

[2018] HKCFI 2051

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 150 of 2018

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s Decision (Ord. 53 r. 3)

Following:

	consideration of documents only
	consideration of documents and the Applicant being absent from court

Leave to apply for judicial review be refused.  

Observations for the Applicant

Background

1.  The Applicant is a national of Pakistan.  He is now aged 28 (DOB: 25 August 1990). 

2.  The Applicant claimed he would be harmed or killed by Muhammad Ali (“Ali”) and Ali’s two sons (“Sikandar” and “Abbas”).

3.  The Applicant said Ali was the chief of a village called Musa Khurd. Ali was a powerful man and had connection with the police. He belonged to the Pakistan Muslim League (N Group) [“PML(N)”]. Ali had two sons. The elder son Sikandar was a government lawyer. Sikandar engaged in illegal activities and had connection with the police. He had a position in PML(N). The younger son Abbas was a policeman. His brother-in-law was a senior police officer of the Kadranabad police station.

4.  The Applicant said he belonged to the Pakistan People’s Party (“PPP”). His father owned three pieces of land close to Ali’s land. Ali wanted the three pieces of land but he refused to pay for them. In 2001/2002, Ali threatened the Applicant’s father to hand over the land to him.

5.  The Applicant's uncle Aslam also wanted the land. He had filed false allegations to the police against the Applicant’s father in 2005.  However, Aslam himself was also threatened by Ali and Ali’s sons to surrender his land. Aslam later had to sell his land to someone else and then fled to England.

6.  In 2006, Ali and his two sons brought some policemen to the Applicant’s house. They threatened the Applicant’s father to give up his land. They injured the Applicant’s father and the Applicant's elder brother Ikram. The Applicant was not at home.

7.  The Applicant’s family reported the matter to the police but the police ignored their complaint. The Applicant believed the police favoured Ali because Ali was a man of influence.

8.  Later, Ali and his men came again. The Applicant was not at home. The men attacked the Applicant’s father and Ikram. The matter was reported to the police but the police did not take any action.

9.  On the third occasion, Ali and his two sons came with some policemen. They had guns and fired into the air. They threatened the Applicant's family to leave their house or they would kill them. They assaulted the Applicant’s father and Ikram. This time, the Applicant was inside the house but he hid himself in the room. The matter was reported to the police

10.  In early 2007, the Applicant's father asked Ikram to go to Islamabad. Ikram later left Pakistan for Dubai.

11.  One day, the Applicant was arrested by the police. He was taken to the police station and beaten up. He was subsequently bailed out by his father’s friend.

12.  On another occasion, the Applicant was confronted by some people including policemen. They assaulted him and asked him why he had not left his land. The Applicant suffered knife wound and was shot on his right foot. The assailants left.

13.  The Applicant made a report to the police but he was ignored again by the police. The Applicant said he found out the police had related his compliant to Ali.

14.  The Applicant fled to Lahore. He later noticed Ali had come to Lahore to look for him.

15.  The Applicant then moved to another place called Gilgit. He stayed in Gilgit for one and a half years but still did not feel safe.

16.  The Applicant finally left Pakistan for China on 17 June 2010. He entered Hong Kong illegally on 6 July 2010 but did not seek asylum immediately. He was arrested by the police on 22 August 2011 and lodged a torture claim two days later.

17.  The Applicant learnt Ali had abducted his father for a week in 2012. His father was beaten up and threatened by Ali to surrender his land. His father asked for time. Ali then released him. A week later, the Applicant's father died of heart attack.

18.  The Applicant said he knew Ali and his sons continued to harass his mother and younger brother.

19.  The Applicant said the Pakistan police were corrupt. They would not assist him since he had no money to bribe them. The Applicant alleged the police would only help rich and influential people like the Ali family.

20.  The Applicant did not think internal relocation was possible. He claimed his enemies could find him in the country.

21.  In his non-refoulement claim form (“NCF”) later filed with the Director, the Applicant added that he was a Sunni Muslim. He feared he might be harmed by a Shia group in his village. He claimed there were constant conflicts between Shia Muslims and Sunni Muslims. The Shias did not allow the Sunnis to organize gatherings openly. They would attack the Sunnis. The Applicant alleged he had been beaten up a couple of times by the Shias but it was only punching and slapping. He had not reported such assaults to the police.

22.  In the ensuing two-tier screening process here (“the Unified Screening Mechanism”), the Director of Immigration (“the Director”) and the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“TCAB/NCPO” or simply “the Board”) respectively refused the Applicant’s claim with respect to all the four applicable grounds: (i) risk of torture,[1] (ii) risk of persecution,[2] (iii) risk of torture or cruel, inhuman or degrading treatment or punishment (CIDTP risk or BOR3 risk)[3]  and (iv) risk of violation of the right to life (BOR2 risk)[4].

23.  On 1 February 2018, the Applicant applied for leave for judicial review.

Timeline

24.  Things happened in this order: –

2010-6-17	The Applicant left Pakistan for China.
2010-7-16	The Applicant entered Hong Kong illegally.
2011-8-22	The Applicant was arrested by the police.
2011-8-24	The Applicant lodged a torture claim.
2014-7-29	The Director interviewed the Applicant.
2014-9-19	The Director interviewed the Applicant again.
2014-9-24	The Director refused the Applicant’s claim with respect to these three applicable grounds: (i) torture risk, (ii) persecution risk and (iii) CIDTP risk (BOR3 risk).  [“the Director’s decision”]
2014-10-6	The Applicant appealed to the Board.
2017-4-18	The Director invited the Applicant to submit additional facts for the consideration of the fourth applicable ground: life risk (BOR2 risk).
2017-5-2	The Applicant failed to submit additional facts by the deadline or thereafter.
2017-5-4	The Director refused the Applicant’s claim with respect to the fourth applicable ground: life risk (BOR2 risk). [“the Director’s further decision”]
2017-10-27	The Board dismissed the Applicant’s appeal with respect to all the four applicable grounds. [“the Board’s decision”]
2018-2-1	The Applicant applied for leave for judicial review.

Respondent/Interested party

25.  The Unified Screening Mechanism is a two-tier process. The Director screens an applicant’s non-refoulement claim first; the applicant may appeal to the Board which deals with his/her complaint on a rehearing basis.

26.  In Re Moshsin Ali, the Court of Appeal ruled “the decision of the immigration officer is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the board is pursued by a claimant.” [5]

27.  In Form 86, the Applicant named the Adjudicator as respondent and the Director as interested party. Thus, the Adjudicator is the putative respondent; the Director is the putative interested party. 

The Board's decision

28.  In the Director’s decision dated 24 September 2014, the Director did not accept there was any real torture risk, persecution risk or BOR3 risk. He refused the Applicant’s non-refoulement claim with respect to those three applicable grounds. He also found reasonable state protection and internal relocation were available to the Applicant in any event.

29.  In the Director’s further decision dated 4 May 2017, the Director considered the Applicant failed to establish there was a personal and real risk of his rights under the Hong Kong Bill of Rights being violated (including the right to life under BOR2). He refused the Applicant’s claim with respect to the fourth applicable ground: life risk (BOR2 risk).

30.  The Applicant appealed to the Board.

31.  The Adjudicator considered it was not necessary to hold any hearing.[6] He found a number of implausible and illogical features in the Applicant's claim .[7] He did not accept the Applicant was a genuine non-refoulement protection seeker because the Applicant did not seek asylum when he arrived in Hong Kong in July 2010 but only after he was arrested in August 2011. The Applicant by then had stayed in Hong Kong illegally for more than a year. [The Adjudicator mistakenly stated in his report it was “over 2 years”.[8] ]

32.  The Adjudicator found the Applicant had exaggerated his situation. He found the Applicant had not established any real risk that warranted non-refoulement protection. On 27 October 2017, the Adjudicator refused the Applicant’s claim with respect to all the four applicable grounds: torture risk, persecution risk, BOR3 risk and BOR 2 risk.

Grounds of judicial review

33.  In his affirmation, the Applicant complained the Adjudicator unlawfully fettered his discretion by refusing his appeal; acted in a procedurally unfair manner; rendered unreasonable or irrational decisions; failed to meet the greater care and duty owed to him as a self-represented claimant.

34.  The Applicant complained the Adjudicator refused his appeal without an oral hearing and had taken more than three years to refuse his appeal. He also accused the Adjudicator failed to make sufficient enquiry; failed to consider updated or relevant COI; took into account outdated cases/irrelevant information/information not officially recognised or simply hearsay; cherry-picked information; failed to evaluate and make a finding of fact as to whether there existed in Pakistan a consistent pattern of gross, flagrant or mass violations of human rights; failed to call for psychological or psychiatric reports; failed to properly consider state protection and state acquiescence; misdirected in law; applied the wrong standard of proof.

35.  The Applicant further complained he was given the appeal bundle only a few days before the appeal hearing. He was unrepresented at that time and he did not have sufficient time to prepare for the appeal due to language problem. The Applicant said he was confused of what happened in the appeal. He complained the Adjudicator failed to make appropriate arrangement in relation to the service of the hearing bundle.

36.  Although the Applicant did not name the Director as respondent but only as interested party, he accused the Director decided on BOR2 risk without screening. He also complained the Director rendered wrong decisions in his case.

Court hearing

37.  In Form 86, the Applicant requested a hearing.  The hearing was scheduled for 21 June 2018. The Applicant was absent.  The Punjabi interpreter called him. The Applicant said on the phone that he had not received the notice of hearing because he had not checked his letter box. He refused to come to the court immediately, saying he had no money. The Interpreter reminded him that should he wish to have a hearing, he should write to the court within 7 days to make that request and to explain for his absence with proof. He was told if he failed to do so, the court would determine his application on consideration of documents only.

38.  The court has not heard from the Applicant since then.

Discussion

39.  Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.

40.  A non-refoulement claim involves ‘life and limb’; any decision will bear significant consequences on an applicant.  Therefore, high standards of fairness must be achieved.  The court should look at an applicant’s case under ‘rigorous examination and anxious scrutiny’.[9]

Delay in applying for relief

41.  An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.[10]

42.  In the present case, the Applicant took out the application for leave for judicial review on 1 February 2018. The Board’s decision was given on 27 October 2017. Therefore, the current application was filed six days late.

Legal principles for extension of time

43.  The Court of Appeal in AW v Director of Immigration[11] stated: –

23. There are two relevant statutory provisions: Order 53 rule 4(1) and section 21K (6) of the High Court Ordinance, Cap 4.

24. Order 53 rule 4(1) is in these terms:

“An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made.”

25. Section 21K (6) provides as follows:

“Where the Court of First Instance considers that there has been undue delay in making an application for judicial review, the court may refuse to grant -

(a) leave for the making of the application; or

(b) any relief sought on the application,

if it considers that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration.”

26. The relationship between these provisions was explained by Ackner LJ in R v Stratford-on-Avon District Council, ex p Jackson [1985] 1 WLR 1319 at 1325F to G and approved of by Lord Goff of Chieveley in R v Dairy Tribunal, ex p Caswell [1990] 2 AC 738 at 746G.  Whenever there is a failure to act promptly or within three months, there is “undue delay”.  Even though the court may be satisfied in the light of all the circumstances there is good reason for that failure, nevertheless the delay, viewed objectively, remains “undue delay”.  The court therefore retains a discretion to refuse to grant leave for the making of the application or the relief sought on the substantive application on the grounds of undue delay, if it considers that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration.

27. In Re Thomas Lai [2014] 6 HKC 1, G Lam J considered the relevant authorities and stated the principles to be applied in an application to extend time for judicial review in §§43 to 45.  I take the following summary of these principles from the submission of Ms Sara Tong, who appeared for the Director:

(1) While in the public law field, it is essential that the courts should scrutinise with care any delay in making an application, the provisions of Order 53 rule 4(1) and section 21K (6) are not intended to be applied in a technical manner.  As long as no prejudice is caused, the courts will not rely on these provisions to deprive a litigant who has behaved sensibly and reasonably of relief to which he is otherwise entitled (R v Commissioner for Local Administration, ex p Croydon London Borough Council [1989] 1 All E R 1033 at 1046, per Woolf LJ).

(2) However, it must also be borne in mind that unless a disciplined approach to applications for judicial review out of time is taken, there is a real risk that public administration will be unduly disrupted and policies and decisions put into uncertainty for many months after they have been made and acted upon.

(3) What may constitute a good reason for extending time cannot be defined. In most cases, this would be a “multi-faceted question” the answer to which would depend on the circumstances of each case.  The following factors, which are not exhaustive, are likely to be of significance:

(i) Length of the delay: Obviously the longer the delay, the more cogent the reason has to be for extending time.

(ii) Explanation for the delay: While Order 53 rule 4(1) requires a good reason for extending time, rather than a good excuse for the delay, it is common sense that the presence of a credibly valid explanation for the delay will strengthen, and conversely the absence of any acceptable explanation will weaken, the applicant’s request for what is after all an indulgence to be granted to him in the court’s discretion.

(iii) Merits of the substantive application: Although merits of the challenge of the administrative decision are a significant matter to be taken into account, it is by no means the sole criterion.  Where an applicant is many months out of time, leave may be refused “however strong the complaint might otherwise be” (Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676 at 693B to C, per Litton NPJ).  An applicant who sleeps upon his rights may be barred from pursuing them in judicial review even though he may have a meritorious case (Law Chun Loy v Secretary for Justice, HCAL 13/2005, 26 October 2006, at §13, per Hartmann J).

(iv) Prejudice: The question of prejudice has two sides: the prejudice to the applicant if time is not extended, and the prejudice to the respondent and to public administration if a challenge is allowed to proceed out of time.

(v) Questions of general public importance: Whether the application raises questions of general public importance, and whether those questions are likely to have to be resolved by the courts in any event.

44.  The list of factors is not exhaustive; the consideration is “multi-faceted”. The overriding principle is of course one of fairness. In non-refoulement cases, high standards of fairness are demanded.

45.  The provisions for time limit are not to be applied technically. Yet, a disciplined approach has to be adopted otherwise the public law would be thrown into uncertainty and chaos.

46.  The Applicant said in his affirmation that he only got the Board’s decision on 23 January 2018 after being threatened by an immigration officer that he would be detained. It is hard to believe such saying.

47.  A delay of six days was not a long delay. It would not prejudice the respondent much but it was still an undue delay in the absence of justification. The Applicant failed to prove any reason for the undue delay. There was no issue of general importance in his application, which had no merits either (see paragraphs 48-59 below). The Applicant's late application for leave for judicial review should not be allowed.

Merits

48.  The Applicant was wrong to say the Director had not screened his claim with respect to BOR2 risk. The Director did.

49.  The Applicant had not provided additional facts to the Director. The Director was entitled to consider the Applicant’s claim on the available information without further interviewing the Applicant on the BOR2 issue. In his further decision dated 4 May 2017, the Director concluded there was no BOR2 risk in the Applicant's case.

50.  The Applicant mentioned he was a self-presented claimant. He was not legally represented after the Director's decision dated 24 September 2014.  There was no evidence to show he had reapplied for legal assistance from the Duty Lawyer Service afterwards. The Applicant also failed to show this court how his case would be undermined or prejudiced by the lack of legal representation only in the later stages of the screening process. The Court of Appeal has repeatedly stated that an applicant of non-refoulement claim does not have an absolute right to free legal representation at all stages of the proceedings.[12]

51.  The Applicant complained he had not been given sufficient interpretation/translation assistance. In the current application for leave for judicial review, Form 86 and the Applicant's affirmation were prepared in English. Apparently, the Applicant could find someone to assist him with interpretation/ translation and to deal with English documents. I am sure that was the case at all material times. The Applicant had much exaggerated his problem of getting interpretation/translation assistance and handling English documents.

52.  The Applicant complained he received the appeal bundle only a few days before the Board hearing. However, there was actually no such hearing.[13]

53.  The Applicant also complained the Adjudicator refused his appeal without holding any oral hearing. There was indeed no hearing because the Adjudicator considered the Applicant had stated his case clearly in the non-refoulement claim form (“NCF”) and there had been two interviews held by the Director in which the Applicant had plenty of opportunities to explain himself on all matters. The Adjudicator considered no worthwhile and effective representations could be made by the Applicant. He therefore decided not to hold a hearing for the appeal and only considered the Applicant’s claim on the information before him.

54.  In ST v Betty Kwan, the Court of Appeal said: –

Fourthly, it does not follow from the requirement of an opportunity to make worthwhile or effective representations that there must be an oral hearing held before a decision is made. Put another way, there is no absolute right to an oral hearing. Among other things, the question of whether an oral hearing should be afforded must depend on the standards of fairness required, the nature of the decision-making process in question, the procedural history of the matter including whether there has been an oral hearing before, the interest at stake and the importance of the decision (in terms of its outcome and consequence), the issues involved, and how the presence or absence of an oral hearing would affect the quality of the opportunity to make worthwhile or effective representations.[14] [emphasis added]

and

 …the question of whether an oral hearing should be held is not to be decided by whether there are factual disputes, but whether an oral hearing “may well contribute to achieving a just decision”.[15] [emphasis added]

55.  Whether an oral hearing should be held depends on the circumstances. The important consideration is ‘how the presence or absence of an oral hearing would affect the quality of the opportunity to make worthwhile or effective representations’ and ‘whether an oral hearing may well contribute to achieving a just decision’.

56.  In the present case, the Applicant only pointed out the fact that there was no oral hearing held by the Adjudicator but he failed to show he really had some worthwhile or effective representations to make in such hearing (if there were one held by the Adjudicator) or such hearing might well contribute to achieving a just decision.

57.  The Applicant applied for leave for judicial review. However, he was absent from the hearing scheduled for 21 June 20018. His explanation was that he had not checked his letter box and thus had not got notice of the hearing. Even if that were the case, it was unacceptable. The Applicant demonstrated his unwillingness to attend the hearing by refusing to come right away. His saying that he had no money to take transport to come to court was untenable. The court then heard nothing from him. The Applicant failed to show he had more representations to make apart from what he had stated in his documents and what he had told the Director in the interviews. He also failed to establish he really had ‘worthwhile or effective representations’ to make if the Adjudicator had held an oral hearing. The Applicant failed to show his non-refoulement claim had been prejudiced by the Adjudicator’s decision not to hold an oral hearing.

58.  The Applicant filed his appeal to the Board in October 2014. The Board’s decision came out in October 2017. It was really more than 3 years. However, the Applicant had not demonstrated how the lapse of time caused him prejudice.

59.  The other complaints raised by the Applicant are vague. I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. I am satisfied the Adjudicator had proper basis for his finding, conclusion and decision which were not Wednesbury unreasonable. He made no errors of law and there was no procedural unfairness. Despite there was no oral hearing held by the Adjudicator, the Applicant had reasonable and sufficient opportunities to state and elaborate his case. The Adjudicator’s report showed he was acquainted with the facts. He considered the whole of the Applicant’s claim carefully and applied the law correctly. Despite the minor writing mistake (see paragraph 31 above), the Adjudicator had achieved the high standards of fairness required of the Applicant’s non-refoulement claim. None of the Applicant’s complaints can stand.

 Conclusion

60.  The Applicant's complaints are not reasonably arguable. He has no reasonable prospects of success in the sought judicial review. I therefore refuse to grant him leave for the 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