WAQAS MUHAMMAD v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1355/2022

[2023] HKCFI 773

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1355 of 2022

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.  Extension of time for the Applicant to apply for leave to apply for Judicial Review be refused; and

2.  The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 29 November 2022 for leave to apply for judicial review (“the leave application”) of the decision (the “Decision”) of the Torture Claims Appeal Board / the Non-refoulement Claims Petition Office (“the Board”) dated 14 November 2019 dismissing his appeal against the decision of the Director of Immigration (“the Director”) in his Notice of Further Decision dated 20 September 2017 (the “2017 Notice”).

2.  The Applicant is a Pakistani national, now aged 37. He allegedly sneaked into Hong Kong from Shenzhen in October/November 2009. He was arrested by the police for illegally remaining in Hong Kong. On 14 November 2009, he sought non-refoulement protection. He subsequently lodged his non-refoulement claim form (“NCF”) on 23 July 2015.

3.  In due course, his non-refoulement claim was assessed on three applicable grounds then available under the Unified Screening Mechanism (“USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; and Persecution Risk[3] grounds. By his Notice of Decision dated 14 April 2016 (the “2016 Notice”), the Director rejected his claims under the first three applicable grounds.

4.  By a letter dated 7 November 2016, the Director invited the Applicant to provide further evidence in relation to a claim under BOR 2 Risk[4] ground. The Applicant did not respond. By his 2017 Notice, the Director rejected his claim under BOR 2 Risk as well.

5.  On 17 November 2017, the Applicant filed a Notice of Appeal / Petition to the Board against the decision of the Director in the 2017 Notice only. As no Notice of appeal / Petition had been filed against the 2016 Notice within the fourteen-day time limit, the decision in the 2016 Notice is final.

6.  The appeal against the 2017 Notice was filed out of time by about one and half months. However, the Board accepted as a result of the Applicant’s two changes of his correspondence address that he did not receive the 2017 Notice until November 2017 and the delay since that date was not lengthy. The Board extended the time for filing of the Notice of Appeal/Petition and scheduled an appeal hearing on 11 September 2019. The Applicant attended the appeal hearing in person. On 14 November 2019, the Board dismissed his appeal in its Decision. Now after more than three years, the Applicant seeks to challenge that Decision by way of judicial review. For avoidance of doubt, the Decision is related to the Director’s decision in his 2017 Notice relating to the BOR 2 Risk ground only.

Application for adjournment

7.  At the Applicant’s request, an oral hearing on 21 February 2023 was scheduled for hearing this leave application. By his letter dated 3 February 2023, the Applicant applied for the hearing to be adjourned to await the outcome of his legal aid appeal. The Court directed that that application be determined at the oral hearing.

8.  The Applicant’s legal aid application had been refused by the Director of Legal Aid on 1 February 2023. At the time of the oral hearing, he was appealing that decision. He therefore asks for an adjournment pending his legal aid appeal. The basis of his application for adjournment is that he is uneducated, does not know the law and procedure and needs time to obtain documents. He had already made an application for legal aid. That application had been considered and refused. Waiting for the outcome of his legal aid appeal could not be a reason for adjourning this hearing.

9.  The Applicant argued that an adjournment was needed to enable him to produce some documents. He had started his non-refoulement claim as early as 2009. It lies ill in his mouth that fourteen years since he has not obtained all documents in support of his claim. When pressed for particulars of the documents he wished to produce, he indicated that they are a First Information Reports from the police station in his home village about the assault and a letter from his mother about the situation in Pakistan. The First Information Report would add nothing to his case as the Board had accepted his allegation about his assault. As for his mother’s letter, upon further questioning, he said it had already been produced to the Board. The letter must have been considered by the Board. Therefore, there was no need to adjourn for producing that letter.

10.  Then, the Applicant said he had to wait for funds from his family to instruct a lawyer. This ground has never been raised before. If his family could and would fund his legal proceedings, they would have send him the funds soon after he filed the leave application, if not before. This ground is an impromptu assertion which does not carry any conviction. This Court is not satisfied that there is any valid ground for adjournment. His application for adjournment is therefore refused.

Length of delay and explanation for the delay

11.  Pursuant to Order 53, rule 4(1) of the Rules of the High Court, an application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when the grounds for application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made. An application made after three months is deemed to have been made with undue delay. The leave application was made more than two years and nine months out of time. This is a very substantial delay. In considering whether to grant extension of time for making a leave application, the court takes into account (i) the length of the delay; (ii) the explanation for the delay; (iii) merits in the substantive application; (iv) the balance of prejudice to the applicant and the proposed respondent if extension of time is granted or refused; and (iv) whether the application raises questions of general public importance which are likely to have to be resolved by the courts in any event: see AW and Director of Immigration[5]. Merits of the substantive application is a very important and, usually, the determinant factor. But, it was also held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung[6] that where an applicant is many months out of time, leave may be refused “however strong the complaint might otherwise be”. The instant case is precisely the type of case to which the principle in Po Fun Chan v Winnie Cheung applies. However, this Court will, for completeness, consider merits for whatever the application is worth.

12.  Annexed to the Applicant’s supporting affirmation is a six-page statement titled “Affirmation of Muhammad Waqas” (the “Statement”) setting out his grounds of application and explanations for the delay. In the Statement, the Applicant made repeated complaints of lack of legal representation and language assistance. He said that English is not his first language and he does not understand the Decision which is written in English and which had not been interpreted to him. He said that hindered his appeal.

13.  As a matter of law, a claimant does not have absolute right to free language assistance at all stages of the proceedings. In Karamjit Singh[7], the Court of Appeal held that it could not have been the intention of any authority laying down the principle of a high standard of fairness that the principle would include provision of interpretation service at any time an applicant desired or required. It must be borne in mind that it was the Applicant’s choice to come to Hong Kong where the official languages are Chinese and English. In the circumstances, he has to live with or cope with his language disability. He cannot expect to have the luxury of any documents to be fully translated into his first language for his benefit as and when he requires. He has to find ways to cope with his language disability including to seek assistance from within his ethnic community. He has been living in Hong Kong for the past 14 years. He should have established good contacts with his ethnic community to assist him with his language disability. Indeed, he was able to file an adequately well written Statement of grounds and another three-page submission in English.

14.  In Paragraph 5 of the Statement, he argues that the delay was not his own mistake because he was then serving sentence and had no resources to instruct a private lawyer. He did not state since when he was in custody. He was certainly not in prison when the 2017 Notice was sent to his correspondence address. Being held in custody does not prevent him from filing the leave application and putting forward what he believed are arguable grounds of review.

15.  In Paragraph 7, the Applicant argues that:

“I believe that since my claim for non-refoulement protection has always been one case and determined altogether, the fact that there are separate decisions made at different times does not mean that I should not be entitled to appeal against those decisions that would now be out of time. This is particularly because I could not have appealed against the decision of the Director of Immigration without first exhausting all means of appeal, namely, by first appealing to the Torture Claims Appeal Board.”

His first sentence seemingly suggests that his claims for protection should be treated as one composite claim. Hence, he should be entitled to seek a review of the Director’s 2016 Notice which was out of time along with a review of the Board’s Decision which impliedly was made within time. The assumption that the leave application relating to the Board’s Decision is made within time is simply incorrect. Furthermore, he had not even appealed against the 2016 Notice which he said in his second sentence is a step he must take before the Board’s decision in relation to that appeal could be judicially reviewed. This leave application is only related to the Board’s Decision. For reasons as correctly pointed out by the Applicant in his second sentence, the Director’s 2016 Notice is not reviewable and, as the Board had pointed out, is now final.

16.  The Applicant’s submission does not explain why it took him three years to apply. This Court is well satisfied that he has no explanation for the very inordinate delay. Absent a really strong and credible explanation, a delay of two years and nine months is beyond the limit which the Court could indulge. On this ground alone, his application may be refused on the principle of Po Fun Chan v Winnie Cheung.

The Applicant’s case

17.  The following account of the Applicant’s case is mainly based on the information in the NCF prepared by him with legal assistance. In gist, he claims that, if returned to Pakistan, he will be harmed or killed by persons associated with the Pakistan Muslim League (“PML(N)”) because he had a dispute with and hurt the son of Shoaib Butt who is a very influential person in the Applicant’s area because Shoaib Butt was a participant in the Nazim election, a member of the PML(N) and had connections with a member of the National Assembly and with the police. In addition, the PML(N) is a strong and the ruling political party in Pakistan at the time.

18.  The Applicant said he had known Shoaib Butt’s son (Siam) since childhood. One day in August 2009, while playing cricket outside the school grounds in their village, he had a quarrel with Siam. Siam used foul language against the Applicant and swore at him. Out of anger, the Applicant hit Siam with the cricket bat he was holding. Siam’s head bled. The Applicant was frightened and went home. He told his mother about the incident. He was afraid and fled to live with his maternal aunt about 30 minutes away by car. His uncle attempted to settle the dispute with Siam’s family but the latter refused. The Applicant’s family informed the Applicant that Siam had filed a report with the police and the police were looking for him the following day.

19.  Three to four days after his uncle’s attempted mediation, the Applicant received a phone call from a mutual friend informing him that Siam was very furious about the incident and Siam’s family had ordered the police to bring him directly to the family instead of to the police station once he was located. The Applicant was very frightened and fled to Hong Kong on 31 October 2009. He did not seek assistance from the police as he could not bribe them.

20.  In December 2009, the Applicant was told by his brother over the telephone that he received threats from Siam asking for the Applicant’s whereabouts and when he did not answer, he was beaten with iron rods and wooden sticks. His brother’s arm was fractured as a result. Because of the threats, his brother also left Pakistan.

The finding of the Board

21.  The Board had “considerable doubts in relation to the truthfulness of the [Applicant]’s claims”[8] and had “concerns that his claims have been fabricated”[9]. It considered the Applicant’s evidence vague and inconsistent. When advised of the inconsistency regarding Siam’s hospitalisation, the Applicant indicated that he had forgotten some incidents. In his Notice of Appeal, the Applicant alleged that “for three months [he] lived far away from [his] family and village in hiding, in [his] absence they killed [his] brother and also troubled rest of [his] family members.” At the appeal hearing, he denied having said that his brother had been killed. The Board did not accept that Siam’s family would continue to press the Applicant’s family about his whereabouts some ten years after the dispute nor is it credible that his brother would need to leave Pakistan in relation to the Applicant’s dispute with Siam.

22.  Despite the doubts about the truthfulness of the Applicant’s case, the Board seemingly assessed his claim on the basis of the case as he asserted[10], but was satisfied on the basis of authoritative and credible country of origin information that the Applicant could relocate to another part of Pakistan to avoid the harm and that having regard to his particular circumstances it is both reasonable and not unduly harsh to expect him to do so.

23.  The Board was not satisfied in the light of the considerable length of time since the Applicant had left Pakistan and in the absence of any evidence indicating that he would be sought by the police that Siam or his family would even be aware of his return or that they would attempt to pursue him if he relocates to another part of Pakistan. The Board also found no evidence indicating that Shoaib Butt would still have any continuing influence as PML(N) is no longer in power in Punjab. It was not satisfied that the Applicant will suffer death penalty, arbitrary deprivation of life or genocide on the basis of a dispute with Siam and his family ten years ago. Accordingly, the Board came to the conclusion that the Applicant is not entitled to protection under the BOR 2 Risk ground.

The legal principles applicable to judicial review

24.  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[11]. 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, procedural unfairness and irrationality.

Grounds for judicial review

25.  In Paragraphs 1 to 5 and 12 of the Statement, the Applicant gave an introduction and explained his late appeal. In Paragraph 12, he submitted that he should be given an oral hearing to explain why he was late in lodging appeal. He never appealed the Director’s decision in the 2016 Notice. Insofar as he is referring to the appeal against the 2017 Notice, the Board accepted his explanation and proceeded to determine his appeal. As mentioned in Paragraph 32 of the Decision, the Board made enquiries with the Immigration Department and with the Applicant which revealed that the Applicant had changed his address twice. The Board accepted those evidence as explanation for the late appeal and extended time for filing the appeal and scheduled an appeal hearing on 11 September 2019 which the Applicant attended. These paragraphs do not explain the delay in making this leave application. No issue is raised in these paragraphs.

26.  In Paragraph 6 of the Statement, the Applicant said he disagreed with the Decision of the Board and made a general assertion that the Decision “has been determined unfairly” which he developed in the subsequent paragraphs. This complaint will be dealt with in the Court’s overall scrutiny of the Board’s Decision.

27.  In Paragraph 7, he sought to bring the decision of the Director in his 2016 Notice into this leave application. For reasons as explained in Paragraph 25 above, that is not permissible. Besides, the argument is illogical.

28.  In Paragraph 8, he complained that the Director and the Board have not taken his unique situation into account fairly and sequentially. Despite doubts about his credibility, the Board assessed his claim on the basis of the case as he asserted. In other words, the Board accepted his evidence in total, but based on that evidence, the Board found it inherently improbable that he would be faced with his claimed fear and risk if returned to Pakistan. This is a finding of fact which is solely within the realm of the Board.

29.  In Paragraph 9, he submitted that the high standard of fairness requires that he be given every reasonable opportunity to establish his claim and, if his credibility is in issue, be allowed to attend a hearing. He had indeed been given an opportunity to prove his claim in an oral hearing which he had indeed attended. And though the Board have doubts about his credibility, it accepted his case as he asserted. Thus, his credibility is not in issue and he also had opportunity to and did attend an oral hearing.

30.  In Paragraph 10, he submitted that the decision-maker should adopt a reasonable approach in assessing credibility. This high standard of fairness is amply demonstrated by the Board’s readiness in accepting his assertions despite its doubts as to his credibility.

31.  His complaint in Paragraphs 11 to 19 is that he was not provided with language and legal assistance in pursuing his appeal and with legal representation before the Board. In Re Zafar Muazam[12], Re Zunariyah[13], Re Zahid Abbas[14], Re Tariq Farhan[15], and Re Lopchan Subash[16], the Court of Appeal held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar.[17] nor the judgment of FB v. Director of Immigration[18] prescribes that a claimant of BOR 2 or BOR 3 or persecution risks has an absolute right to free legal representation at all stages of the proceedings. The Applicant was legally represented up to the conclusion of the screening interview, though not at the appeal before the Board. The real question is whether the claimant is prejudiced for want of legal and language assistance.

32.  The Applicant had the benefit of legal representation in preparing and presenting his case to the Director. All the benefits that legal representation could have afforded them were contained in the written submissions, non-refoulement claim form and answers in the screening interview given under legal advice. All these had been presented to the Director, which were then presented to the Board. Despite he was not legally represented at the appeal hearing before the Board, all the benefits which legal representation could have afforded him were before the Board. Taking a global view of the circumstances, nothing amiss arose from the non-availability of legal representation in the process before the Board. The Applicant suffered no prejudice due to lack of legal representation before the Board.

33.  The Applicant said that the Decision is in English and was never interpreted to him in his first language. He did not understand the Decision. As explained in Paragraph 13 above, as a matter of law, a claimant does not have absolute right to free language assistance at all stages of the proceedings. He cannot expect to have the luxury of any documents to be fully translated into his first language for his benefit as and when he requires. He has to find assistance himself from among his friends and his ethnic community. Furthermore, this lack of language assistance in this context would only affect the preparation of his leave application but has no impact on his appeal before the Board. Insofar as this leave application is concerned, he was able to produce a well presented Statement of grounds of application and was assisted by an interpreter in the hearing.

34.  In Paragraph 13, the Applicant said he was not aware of the Notice of Decision, presumably meaning the 2016 Notice and that it was not his mistake that he was late in filing an appeal to the Board. The 2016 Notice is now final and was not a subject matter before the Board.

35.  At the hearing, after explaining the principles applicable to judicial review, the Applicant confirmed that he had no complaints about error of law or irrationality in the Decision, but alleged procedural unfairness. His complaints are (1) that he was not provided with an interpreter at the appeal hearing and (2) that the content of the hearing bundle was not translated or interpreter to him. Upon further enquiries with him, it transpired that at the time of the appeal hearing, the Applicant was in custody and the hearing was conducted via video link. It appeared that the Applicant was at one end of the link with a monitor while a member of the Board and another person who probably provide interpretation services to the Board were at the other end. There was no mention in the Decision as to how the appeal hearing was conducted. In the interest of justice and fairness, the Court called for the audio recording of the appeal hearing.

36.  The hearing lasted for about half an hour. Having heard the recording, the Court is satisfied that the appeal hearing was conducted by video link with an interpreter located at the end of the link where the Board sat. The interpreter was conversant in both Urdu and Punjabi and enquired the Applicant about the language of his choice. The Applicant opted to use Punjabi. Then the interpreter affirmed in English and the Applicant affirmed in Punjabi with the assistance of the interpreter. The Board introduced itself to the Applicant and explained to him the issues. The Applicant responded that he understood. The Board confirmed with the Applicant that he had the hearing bundle which contained all the evidence relating to his claim. The Applicant confirmed. Then the Board asked him questions in English. The interpreter interpreted what was said by the Board to the Applicant in Punjabi and vice versa interpreted to the Board what the Applicant said in English. The Applicant responded appropriately and gave meaningful answers to the questions asked. Though the interpreter was not located at the Applicant’s end of the link, he had the benefit of the services of the interpreter. There was nothing irregular in the arrangement. During the hearing the Applicant did not refer to the hearing bundle and never sought any assistance relating to the hearing bundle.

37.  As for the Applicant’s complaint about lack of language assistance in respect of the content of the hearing bundle, the high standard of fairness does not require provision of language assistance any time an applicant desired or required: see Paragraph 13 above and Karamjit Singh. The Applicant had been provided with the appeal bundle which is basically made up of his NCF, the record of his screening interview, and the 2017 Notice with the COI. He knows what is contained in his NCF which was filled in by him with the assistance of an interpreter and the Duty Lawyer Service. He knows what is contained in the record of screening interview which he attended with the assistance of interpreter and legal representation. The record had been read back to him in his own language and he signed to acknowledge that he understood and agreed with its contents and that no amendment was necessary. Recognizing the limitation in his foreign language ability and the importance of his claim, he ought to have taken notes, at least very brief ones, to remind him of what he had said or written rather than relying on the host country to provide him the convenience of interpretation at his fingertips. He should not just sit back and turn a blind eye to the documents because they were not written in a language he understands.

38.  The 2017 Notice with the COI were issued on 20 September 2017. The appeal hearing was conducted on 11 September 2019. In between, he had almost two years to find out what the 2017 Notice and COI are about, if he was at all serious in pursuing his non-refoulement claim and appeal. He should not do nothing and expect the host country would translate the documents to him as and when he requires. He should not sit back and did nothing and then complain that the documents had not been translated for him.

39.  It is his burden to prove his entitlement to non-refoulement protection. While the Board has a duty of joint endeavor or shared burden with him to establish his claim, he may not ignore his part of the shared burden, sit back and do absolutely nothing himself and leave it to the Board to prove his case for him. Had he raised any issue from the hearing bundle, the Board would have in the exercise of its duty of joint endeavor assisted, investigated and considered. There is no merit in this ground of judicial review.

Discussion

40.  The grounds advanced by the Applicant are unarguable. Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles relating to the BOR 2 ground; the burden of proof and standard of proof; and observed a very high standard of fairness. The Board found the Applicant not credible on the crucial issues of his risk of harm upon his return to Pakistan. Basically, he failed to discharge his burden of proving his fears and risks. It was on that basis that the Board found he had failed to prove the factual basis to support his claim for non-refoulement protection under BOR 2 Risk ground. 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.

Conclusion

41.  The leave application is made more than two years and nine months out of time. The intended application for judicial review has no realistic prospect of success. For these reasons, extension of time to apply and the application for leave to apply for judicial review are 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