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

HCAL105/2018

[2018] HKCFI 1992

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 105 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

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 48 (DOB: 16 September 1969).

2.  The Applicant claimed he would be killed by Karamdad Wala (“KW”), Bashir Ahmed (“BA”) and Khadam Hussain Dhilu (“KHD”). Those men forced him to join the Pakistan Muslim League (N) [“PML(N)”]. The Applicant refused because he had already joined the Pakistan People’s Party (“PPP”) since 2008 and was an active member. He had gained support from his villagers. The Applicant said PML(N) therefore targeted him.

3.  The Applicant said that in 2012, KW instructed BA to ask him to join PML(N). He refused. BA then threatened to frame him up with false accusations.

4.  Two months later, KHD confronted the Applicant with some men armed with guns. KHD belonged to an extremist group called Sipah-e-Sahaba Pakistan (“SSP”). He was sent by KW to threaten the Applicant to give up the local council election. The Applicant asked for time to consider the matter. KHD and his men then left.

5.  A week later, the Applicant was assaulted by BA and some armed men in the street. He was injured. Some villagers came to intervene. The assailants then left. The Applicant believed he was attacked because of his support for PPP. He reported the matter to the police. The police merely registered his complaint and took no action.

6.  A month later, the Applicant was abducted by the SSP people including KHD. They tortured him. The Applicant pretended to agree to join PML(N). He was then released.

7.  The Applicant reported the matter to the police. A police officer rebuked him for making report against KHD and KW. Even though the Applicant was later accompanied by a local PPP leader to go to the police station to seek assistance, the police still refused to register his complaint. The Applicant believed the police were influenced by PML(N). He did not make further report to higher authorities as he thought they were also influenced by KW, who was a member of the Provincial Assembly.

8.  One odd months later, the Applicant’s enemies fired gunshots at his house, causing damage to the gate and walls. No one was injured. This time, the Applicant did not make any report to the police. He fled to another place to stay with his friends.

9.  The Applicant finally left Pakistan on 5 October 2012. He went to Malaysia first and then to Macau. He actually wanted to go to Canada. His travel agent finally gave him a fake British passport to enter Hong Kong on 21 October 2012 as visitor. In fact, the Applicant had been to Hong Kong several times before (see paras 10-13 below).

10.  In October 1992, the Applicant used the name Mohammad Aslam (ID 1) to enter Hong Kong as visitor. He was permitted to stay until 14 January 1993. He overstayed and surrendered to the Immigration Department on 15 April 1993. He was repatriated to Pakistan on 24 May 1993.

11.  A few months later, on 15 September 1993 the Applicant came to Hong Kong again using another name Muhammad Aslam (ID 2). His travel document was later found to have been unlawfully altered. He was arrested on 23 September 1993 and repatriated to Pakistan for the second time on 5 March 1994.

12.  Almost two years later, on 28 February 1996 the Applicant was arrested by the police in Hong Kong again. He used back the name Mohammad Aslam (ID 1). On 27 July 1996, he was repatriated to Pakistan for the third time.

13.  Six years later, on 8 August 2002 the Applicant came to Hong Kong using another name Chaudhry Aslam Muhammad (ID 3). On 25 March 2003, he left Hong Kong for China.

14.  This time, the Applicant came to Hong Kong on 21 October 2012 in the name of Aslam Mian Muhammad (ID 4). He then travelled among Hong Kong, China and Macau. A year later, his visa expired. He left Hong Kong for Korea on 17 October 2013 but was repatriated to Hong Kong on the next day. The Applicant was refused entry by an immigration officer but he raised a torture claim on 24 October 2013. He withdrew the torture claim later and raised a CIDTP claim on 28 October 2013.

15.  The Applicant claimed the Pakistan authorities would not protect him. He also said internal relocation was not viable because his enemies were powerful and could locate him easily in the country.

16.  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].

17.  On 22 January 2018, the Applicant applied for leave for judicial review.

Chronology of events

18.  Things happened in this order: –

1992-10-14	The Applicant entered Hong Kong as visitor with a Pakistan passport under the name of Mohammad Aslam (ID 1). He was permitted to stay until 14 January 1993 but he overstayed.
1993-4-15	The Applicant surrendered to the Immigration Department.
1993-5-24	The Applicant was sent back to Pakistan.
1993-9-15	The Applicant entered Hong Kong again as visitor under the name of Muhammad Aslam (ID 2) with altered date of birth in his Pakistan passport. He was allowed to stay until 24 September 1993 but was arrested on 23 September 1993 for his passport alteration.
1994-3-5	The Applicant was sent back to Pakistan again.
1996-2-28	The Applicant was arrested in Hong Kong for illegal remaining. He used back the name of Mohammad Aslam (ID 1).
1996-7-27	The Applicant was sent back to Pakistan for the third time.
2002-8-8	The Applicant entered Hong Kong as visitor with a Pakistan passport in the name of Chaudhry Aslam Muhammad (ID 3).
2003-3-25	The Applicant left Hong Kong for China.
2012-10-21	The Applicant entered Hong Kong as visitor with a fake British passport in the name of Aslam Mian Muhammad (ID 4). He was permitted to stay until 19 April 2013.
2013-4-18	The Applicant left Hong Kong for China.
2013-4-21	The Applicant entered Hong Kong from China. He was allowed to stay as visitor until 18 October 2013.
2013-10-17	The Applicant left Hong Kong for Korea. He was sent back to Hong Kong on the next day because his British passport was a fake. He was refused permission to land in Hong Kong.
2013-10-24	The Applicant lodged a torture claim.
2013-10-28	The Applicant withdrew his torture claim but raised a non-refoulement claim.
2015-10-29	The Director interviewed the Applicant.
2015-12-7	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”]
2016-9-21	The Director invited the Applicant to submit additional facts for the consideration of the fourth applicable ground: life risk (BOR2 risk).
2016-9-27	The Applicant sent a letter to the Director to apply for protection under BOR2 but he provided no additional materials for his claim.
2016-11-1	The Director refused the Applicant’s claim with respect to the fourth applicable ground: life risk (BOR2 risk). [“the Director’s further decision”]
2017-1-20	The Applicant appeared before the Board for appeal.
2017-2-17	The Board dismissed the Applicant’s appeal with respect to all the four applicable grounds. [“the Board’s decision”]
2018-1-22	The Applicant applied for leave for judicial review.

Respondent/Interested party

19.  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. 

20.  In Form 86 (the notice of application for leave to apply for judicial review), the Applicant named the Board as respondent and the Director as interested party.  Thus, the Board is the putative respondent; the Director is the putative interested party.

Director of Immigration (the Director)

21.  In the Director’s decision dated 7 December 2015, the immigration officer did not make specific findings on the credibility of the Applicant. However, even on the Applicant's 's own account of events the officer considered the level of risk of harm against the Applicant was low and the alleged enemies did not have a real intention to harm him.   

22.  The officer noted the Applicant had not been inflicted with ill-treatment to a minimum level of severity. The complained situation was not instigated, consented or acquiesced by the Pakistan government or officials or persons acting in any official capacity.

23.  The officer was aware there were reports of police corruption in Pakistan. However, there was also objective country-of-origin information (“COI”) showing the Pakistan government had taken practical steps to improve the effectiveness of the police. There were also alternative avenues to seek justice in the country. The officer found reasonable state protection and internal relocation were available to the Applicant.

24.  The officer did not accept the Applicant faced any torture risk, persecution risk or CIDTP risk (BOR3 risk). He refused the Applicant’s claim with respect to those three applicable grounds.

25.  Later, the Director wrote to the Applicant inviting him to submit additional facts for the consideration of life risk (BOR2 risk).  The Applicant sent a letter dated 27 September 2016 as notification of non-refoulement application under BOR2 but it contained no additional information.

26.  In the Director’s further decision dated 1 November 2016, the officer considered the Applicant was not entitled to life risk protection because he failed to establish there was a personal and real BOR2 risk. He refused the Applicant’s claim with respect to the fourth ground: life risk (BOR2 risk).

TCAB/NCPO (the Board)

27.  Before the Adjudicator, the Applicant chose not to answer any questions. On the evidence before him, the Adjudicator considered the Applicant's claim was vague and mere assertion. He did not find the Applicant reliable.

28.  Even on the Applicant’s own account of events, the Adjudicator considered the complained situation was not instigated by the Pakistan government or officials. There was no evidence of state acquiescence or consent. The Applicant also had not suffered any ill-treatment to a minimum level of severity.

29.  The Adjudicator had studied relevant COI. He was satisfied reasonable state protection and internal relocation were available to the Applicant.

30.  The Adjudicator did not accept the Applicant faced any torture risk, persecution risk, CIDTP risk (BOR3 risk) or life risk (BOR2 risk) that warranted non-refoulement protection. He refused the Applicant’s claim with respect to all the four applicable grounds.

Grounds for judicial review

31.  In Form 86 and his affirmation, the Applicant complained the Adjudicator rendered unreasonable or irrational decisions; acted in a procedurally unfair manner; failed to meet the greater care and duty owed to a self-represented claimant; relied on information not officially recognised or simply hearsay or outdated cases.

32.  The Applicant complained the appeal bundle was served on him only seven days before the Board hearing. He was unrepresented and not good in English. He had no means to find an interpreter to help him to understand the English documents. He said he was thus confused as to what happened. The Applicant accused the Board failed to make appropriate arrangements in relation to the hearing bundle.

Court hearing

33.  In Form 86, the Applicant requested a hearing.  The hearing took place on 20 June 2018. The Applicant was in person. An Urdu interpreter provided interpretation service in court.

34.  The Applicant said he knew very little English. A friend helped him to prepare Form 86 and the affirmation.  He confirmed all the grounds of judicial review were in the documents.

35.  The Applicant filed the current application for leave for judicial review on 22 January 2018, more than 11 months after the Adjudicator rendered his decision on 17 February 2017. The Applicant said he did not know how to apply for judicial review. He was also unaware that he had to make such application within three months from the Adjudicator’s decision. The Applicant said he had tried to settle his problem in Pakistan but failed. Then, he sought judicial review.

36.  The Applicant said he had submitted all the proofs he had to the Director and the Adjudicator for their consideration of his non-refoulement claim. He, however, complained that he had not been granted time to get further proofs which were some medical records and related documents.

Discussion

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

38.  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’.[5]

Late application for leave for judicial review

39.  Order 53, rule 4 of the Rules of the High Court states: –

(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.

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

40.  The Adjudicator rendered his decision on 17 February 2017. The Applicant should apply for leave for judicial review within three months from that date. However, he only filed the current application eleven months later on 22 January 2018. Given there was a grace period of three months for the filing, the application was in fact late by more than 8 months.

Legal principles of extending time

41.  In AW v Director of Immigration[6], the Court of Appeal 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.

The list of factors is not exhaustive; the consideration is “multi-faceted”; the overriding principle is one of fairness.

42.  While the provisions of Order 53 rule 4(1) and section 21K (6) should not be applied in a technical manner, a disciplined approach to applications for judicial review out of time ought to be taken otherwise public administration may be thrown into chaos and uncertainty. The Applicant explained he did not know the time limit and that he had waited for his problem in Pakistan to settle were no good excuses. The delay by more than 8 months (already excluding the three-month grace period for filing) was undue and substantial. There was no justification. There were also no merits in the Applicant's application (see paras 43-51 below). His late application for leave for judicial review should not be allowed.

Merits

43.  The Applicant complained the Director only served the appeal bundle on him around 13 January 2017. Most of the documents were in English.  He did not have sufficient time to find an interpreter to assist him to deal with the documents. He was thus confused of what was happening.

44.  According to para. 9.6 of the ‘Principles, Procedures and Practice Directions of the Torture Claims Appeal Board’[7] and para. 12.6 of the ‘Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme’[8], the Director shall send copies of the hearing bundle to the Board and to the Applicant no later than 5 working days prior to the date of the hearing.

45.  In the present case, the Director served the appeal bundle on the Applicant 7 calendar days (or 6 working days) prior to the appeal hearing. The papers were served on the Applicant in time.

46.  The appeal bundle would consist mostly of documents that had been seen or submitted by the Applicant during the first-tier screening. The Applicant's case was not complicated. There was no evidence to show the appeal bundle was difficult or voluminous.

47.  A few days certainly were not a long period but could still be sufficient for reasonable and diligent preparation on the part of the Applicant. The Applicant failed to show he really needed more time to prepare for his appeal.

48.  In court, the Applicant said a friend helped him to prepare Form 86 and the affirmation for the current application for leave for judicial review. I am sure he had access to language assistance at all material times. The Applicant had exaggerated his problem of understanding and handling English documents.

49.  The Applicant complained in court that he had told the Adjudicator and the Director he needed time to get certain proofs. There is really no evidence of such application. The Applicant only vaguely told this court those proofs were some medical records and related documents. He failed to explain why he could not have got hold of those documents in the several years’ time after he had lodged his non-refoulement claim as early as October 2013.

50.  There are other vague complaints made by the Applicant. I have reviewed the Adjudicator's decision under ‘rigorous examination and anxious scrutiny’. 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. There is no substance in the Applicant’s complaints against the Adjudicator, who had engaged in proper joint endeavour with the Applicant in the inquiry process. The Applicant had been given reasonable and sufficient opportunities to state and elaborate his case.  The report of the Adjudicator showed that he was acquainted with the facts and the law.  He had considered the Applicant's case carefully and applied the law correctly. The Adjudicator had achieved the high standards of fairness required of the Applicant’s non-refoulement claim.

Conclusion

51.  The Applicant’s complaints are not reasonably arguable.  He has no realistic 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