RIZWAN v. DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL107/2018

[2019] HKCFI 2051

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 107 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 oral submission by the Applicant in open court

(1)  Extension of time for application for leave to apply for judicial review of the decision of Torture Claims Appeal Board dated 29 June 2017 be refused; and

(2)  Application for leave to apply for judicial review be dismissed.

It is further directed that:

(1)  If the applicant intends to appeal against the order refusing to extend the period for making the application for leave to apply for judicial review to the Court of Appeal, he must first apply to this court within 14 days of the date of this order by way of summons for leave to appeal;

(2)  When filing the application for leave to appeal, the applicant must at the same time file with the court written submissions of not more than 5 pages in support of the application for leave to appeal;

(3)  The court will thereafter decide whether it is necessary to direct the summons and the written submissions to be served on the putative respondent(s) and whether the application for leave to appeal shall be determined on paper;

(4)  If the court decides that the application for leave to appeal shall be determined on paper, it will proceed to do so without further directions;

(5)  Liberty to apply.

Observations for the Applicant

Background

1.  The Applicant is a national of Pakistan. He is now aged 30 (DOB: 9 January 1989). 

2.  The Applicant left Pakistan for China on 5 July 2011. Nine months later on 6 April 2012, he entered Hong Kong from China illegally.  On 16 May 2012, he was arrested by the police. The Applicant lodged a torture claim[1] on 18 May 2012 to the Director of Immigration (“the Director”).

3.  In his torture claim, the Applicant told the Director that he would be harmed or killed by his paternal uncle Riaz due to a land dispute. The Applicant said his father had a piece of land with a small house on it. His family lived there. His four paternal uncles including Riaz lived in a bigger house next to the Applicant’s family. Riaz wanted to take their land. In late 2009, Riaz started to harass the Applicant's family. On a number of occasions, he went with some armed men to attack the Applicant and his brothers. The Applicant was injured in the first attack. In the later attacks, he managed to escape. He and his brothers had to leave home to avoid their enemies. Finally, the Applicant left Pakistan for China on 5 July 2011 and later sneaked into Hong Kong on 6 Aril 2012.

4.  The Director rejected the Applicant's torture claim on 8 August 2012. [“the Director's 2012 decision”] There was no appeal to the Torture Claims Appeal Board/ Non-refoulement Claims Petition Office (“the Board”).

5.  The Applicant had failed to report for recognizance since 4 September 2012. He surrendered to the Immigration Department on 26 May 2014 and raised a non-refoulement claim.

6.  In the written request for non-refoulement protection which the Director received on 27 May 2014, the Applicant alleged a further risk of harm. It was stated the Applicant feared his cousin would kill him because his cousin had borrowed money from him and did not want to repay. The cousin attacked the Applicant, who had to run away with his brother for safety.

7.  However, in his Supplementary Claim Form (“SCF”) dated 18 March 2016 the Applicant said the May 2014 letter which mentioned the fear of his cousin was written by his friend Aftab in Hong Kong. The Applicant said although he signed the letter, he had not verified its contents because he thought Aftab would know how to write for him. When he knew its contents after being explained by the interpreter, he indicated he did not want to rely on it as the basis of his non-refoulement claim.

8.  The Applicant said he did not contact his family directly after he had come to Hong Kong. Instead, he communicated with his maternal uncle Ayyub. In his SCF, the Applicant said Riaz complained to the police that the Applicant and Ayyub owed him money. The police then arrested Ayyub. They threatened Ayyub’s wife that they would not release her husband unless she handed the Applicant over to them. Ayyub’s wife eventually had to bribe the police to get her husband released.

9.  In the SCF, the Applicant also said though the land in question was owned by his father he (the Applicant) was the decision-maker in the family. Riaz targeted him because the Applicant would inherit the land from his father.

10.  The Applicant had not complained to the Pakistan police. He alleged the police were corrupt and there was no justice in his country. He said internal relocation was not viable.

11.  On 7 July 2016, the Director rejected the Applicant’s non-refoulement claim with respect to these two applicable grounds: persecution risk[2]  and  risk of torture or cruel, inhuman or degrading treatment or punishment (BOR3 risk)[3]  [“the Director's decision 2016 decision”].

12.  On 17 March 2017, the Director rejected the Applicant’s non-refoulement claim with respect to the last applicable ground: life risk (BOR2 risk)[4] [“the Director's 2017 decision”].

13.  The Applicant appealed to the Board against the Director's 2016 and 2017 decisions.

14.  On 29 June 2017, the Board rejected the Applicant’s non-refoulement claim with respect to these three applicable grounds: persecution risk, BOR2 risk and BOR3 risk.

15.  On 23 January 2018, the Applicant applied for leave for judicial review.

Respondents

16.  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 case on a rehearing basis.

17.  In Form 86 (the notice of application for leave to apply for judicial review), the Applicant named the Director and the Adjudicator as respondents. The Director is the first putative respondent; the Adjudicator is the second putative respondent.

18.  In Re Moshsin Ali, the Court of Appeal states that “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] The Applicant cannot seek leave for judicial review against the Director's decision. I shall deal with his application in relation to the Board's decision only.

The Director's decision

19.  The Director rejected the Applicant's torture claim on 8 August 2012. There was no appeal.

20.  The Applicant subsequently raised a non-refoulement claim in May 2014.

21.  In his decision dated 7 July 2016, the Director did not accept the Applicant faced any persecution risk or BOR3 risk. He also considered reasonable state protection and internal relocation were available to the Applicant in any event. The Director rejected the Applicant’s non-refoulement claim with respect to those two applicable grounds.

22.  In his decision dated 17 March 2017, the Director did not accept the Applicant faced any BOR2 risk. He rejected the Applicant’s non-refoulement claim with respect to the last applicable ground: BOR2 risk.

The Board's decision

23.  In relation to the Director’s 2016 decision and 2017 decision, the Applicant appealed to the Board. The Adjudicator interviewed him on 28 April 2017.

24.  The Adjudicator found there were inconsistencies in the Applicant's claim on the number of his uncles, their names, Riaz’s involvement and the ownership of the land. The Adjudicator also found the Applicant's claim of Ayyub being arrested and released illogical regarding the dates of their occurrence. He did not accept the Applicant's claim of risk from Riaz.

25.  Regarding the Applicant's alleged fear of his cousin, the Adjudicator found the Applicant failed to explain why he maintained such risk was real and yet he specifically said he did not want his non-refoulement claim to proceed on that basis. The Adjudicator did not accept the Applicant's claim of risk from his cousin.

26.  The Adjudicator was not satisfied the Applicant faced any persecution risk, BOR2 risk or BOR3 risk. On 29 June 2017, he rejected the Applicant's appeal with respect to those three applicable grounds.

Grounds of judicial review

27.  The Applicant said the risk came from his cousin, who wanted to occupy his house. The Applicant complained the decisions of the Director and the Adjudicator were not reasonable and fair. He accused the Adjudicator failed to give him sufficient time and chance to arrange relevant evidence.

Court hearing

28.  The hearing took place on 6 September 2018. The Applicant was in person. A Punjabi interpreter provided service in court.

29.  The Applicant filed the current application almost seven months after the Board’s decision. He confirmed he received the Board's decision in late June 2017. He had no idea of what to do then. He did not know there was a three-month limitation period. In January 2018, a friend told him he could apply for judicial review so he took out the current application on 23 January 2018.

30.  The Applicant said a friend helped him to prepare Form 86 and the affirmation. All the grounds of judicial review were in the documents. He had nothing to add.

31.  The Applicant also confirmed he had submitted all of his case to the Director and the Adjudicator for their consideration of his non-refoulement claim.

Discussion

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

33.  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’.[6] Nevertheless, it is said in Re Islam Rafiqul: –

“The role of the Court in a judicial review is not to provide a further avenue of appeal. The primary decision-makers are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of issue at hand, the Court should not usurp the role of the Board. Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The Court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.” [7]

Late application for leave for judicial review

34.  Order 53 rule 3(1) of the Rules of the High Court reads: –

(1)  No application for judicial review shall be made unless the leave of the Court has been obtained in accordance with this rule.

35.  Order 53 rules 4(1) and (2) of the Rules of the High Court read: –     

(1)  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. (L.N. 356 of 1988)

(2)  Where the relief sought is an order of certiorari in respect of any judgment, order, conviction or other proceeding, the date when grounds for the application first arose shall be taken to be the date of that judgment, order, conviction or proceeding.

36.  It is clear from these provisions that no application can be made after the three-month period unless the Court considers there is good reason for extending time. The Applicant must provide good reason for the Court to approve extension of time. It is a pre-requisite in late application for leave for judicial review.[8]  If the court is not satisfied there is good reason for extending time, then no application for judicial review can be made in accordance with rule 4(1).  In that event, the Court should not proceed to consider if leave should be granted or refused on other grounds.[9]

37.  In the present case, the Board’s decision was issued on 29 June 2017. The Applicant got it but only applied for leave for judicial review almost seven months later on 23 January 2018. Excluding the 3-month grace period for filing, he was late for almost 4 months.

38.  The Applicant confirmed he received the Board's decision in late June 2017. He had no idea of what to do then. He did not know there was a three-month limitation period. In January 2018, a friend told him he could apply for judicial review so he took out the current application on 23 January 2018.

39.  The Applicant's ignorance of the 3-month time limit was not a good reason. The delay was undue and not insignificant. While the prejudice that would be caused to the putative respondent might not be much, discipline must be maintained in the area of public law. Furthermore, the Applicant's application for leave for judicial review involved no issue of general importance and his argument had no merits at all.

40.  The Applicant made complaints against the Director and the Adjudicator. As said in paragraph 18 above, I would deal with the current application in relation to the Board's decision only.

41.  The Applicant accused the Adjudicator failed to give him sufficient time and chance to arrange relevant evidence. The Applicant did not give specifics.

42.  The Adjudicator’s report showed the Adjudicator was patient and gave many opportunities to the Applicant for him to state his case clearly. The Applicant did not appreciate the opportunities. Sometime into the hearing, he indicated he did not wish to give further evidence.[10]

43.  The Adjudicator did not find the Applicant’s claim credible regarding his uncle or cousin. His conclusion was based on reasons.

44.  I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. The Adjudicator had proper basis for his finding and decision which were not Wednesbury unreasonable. He made no errors of law and there was no procedural unfairness. The Adjudicator had engaged in joint endeavour with the Applicant in the screening process. The Applicant had been given reasonable and sufficient opportunities to state and elaborate his case. The Adjudicator was acquainted with the facts. He considered the Applicant's case carefully and applied the law correctly. The Adjudicator had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim.

Conclusion

45.  The current application for leave for judicial review is unreasonably late. There are no justified circumstances that oblige the court to consider such late application. I refuse to grant the Applicant extension of time. His late application for leave to apply for judicial review is dismissed.

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