ELLAHI RASHID v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL680/2017

[2018] HKCFI 1323

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 680 of 2017

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 submissions by the Applicant in open court

Leave to apply for judicial review be refused.  

Observations for the Applicant

Background

1.  The Applicant is a Pakistan national. He is now aged 37 (DOB: 30 August 1980). 

2.  The Applicant had previously come to Hong Kong illegally twice. This is the third time he entered Hong Kong illegally. He claimed he would be harmed or killed by Nasir and Younis (“N & Y”). N&Y belonged to the ruling party, the Pakistan Muslim League (Nawaz) [“PML(N)”]. The Applicant was a supporter of the Pakistan People’s Party (“PPP”).

3.  The Applicant had supported PPP since 2002. He actively invited people to join PPP. His uncle Muhammad Riaz was the party’s chairman in his district.

4.  One day in 2006, N& Y approached the Applicant. They asked him to quit PPP to join PML(N). They also asked him to stop inviting people to join PPP. The Applicant refused. He continued to perform for PPP. Later, he was assaulted by N&Y. The Applicant did not report the matter to the police because a councillor called Mohammad Aslam (“Aslam”) asked him not to.

5.  The Applicant believed he was targeted by N & Y because if he joined PML(N), many people would follow him.

6.  Two months later, N&Y intercepted the Applicant again. N pointed a gun at the Applicant. He also fired at the Applicant's door to threaten him not to support PPP or to invite people to join PPP. The Applicant verbally promised but actually he would not stop performing for PPP.

7.  The Applicant reported the matter to the police this time but they did not listen or write any report. The Applicant alleged the police showed favour to PML(N), which was the ruling party.

8.  Aslam advised the Applicant to seek non-refoulement protection in Hong Kong. In mid-2006, the Applicant left Pakistan for China by air. He stayed in China for 3 to 4 days before coming to Hong Kong illegally by boat. He made a refugee application. However, he withdrew that application 3 to 4 months later because his uncle had talked to N&Y, who now agreed not to bother him anymore. The Applicant was repatriated to Pakistan in the same year of 2006.

9.  Back in Pakistan, the Applicant continued to work for PPP. His uncle died in 2009 and was succeeded by his son Naeem. The Applicant helped Naeem to recruit people to join PPP. He also helped PPP in the election campaign.

10.  The Applicant said N&Y resumed bothering him. They threatened to kill him. The Applicant did not report the matter to the police because he felt the police would not listen to him. He continued to help Naeem and PPP.

11.  In June or July 2009, some PML(N) people including N&Y stopped the Applicant on the road. They beat him. The Applicant reported this incident to the police. However, the police did not register his case. They asked the Applicant to leave. They even told him not to make troubles with N&Y. The Applicant thought the police would not do anything for him. He did not report the matter to higher authorities.

12.  Another two to three months later, the Applicant was again assaulted by N&Y and their associates. N used a pistol to hit him. The Applicant did not report the matter to the police.

13.  The Applicant did not think the Pakistan police would protect him. He also considered internal relocation was not viable as his enemies could find him sooner or later.

14.  On 28 September 2009, the Applicant left Pakistan again for China. Five days later, he entered Hong Kong illegally by boat. He raised a torture claim in October 2009. He felt safe in Hong Kong and did not want to go back to Pakistan despite PPP became the ruling party in late 2009.

15.  In October 2013, PML(N) became the ruling party again. Yet, the Applicant withdrew his torture claim saying Naeem had talked to N & Y. N & Y agreed not to trouble the Applicant anymore if the latter would not participate in political activities in Pakistan. A week later, Naeem told the Applicant that the problem had not been settled. The Applicant wrote to the Immigration Department to cancel his withdrawal on 4 November 2013. However, Naeem confirmed to the Applicant in January 2014 that N&Y really would not bother him anymore. The Applicant was then willing to be repatriated to Pakistan on 24 February 2014.

16.  Back in Pakistan, the Applicant continued to work for PPP. In October 2015, N&Y and their associates confronted the Applicant and hit him. They did not say anything. The Applicant reported the matter to the police. The police took a statement from him and said they would arrest the culprits. However, no one was arrested. The Applicant thought the police were not willing to help him as his enemies were from the ruling party.

17.  Later, N&Y confronted the Applicant again. They threatened they would shoot him.

18.  The Applicant did not know when N&Y would execute their death threat. He did not seek help from the police anymore. The Applicant thought internal relocation was not possible as his enemies could locate him. He felt he must leave Pakistan again.

19.  On 1 November 2015, the Applicant left Pakistan for China for the third time. On 6 November 2015, he entered Hong Kong illegally for the third time and applied for non-refoulement protection.

20.  In the ensuing two-tier screening process (“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].

21.  On 26 September 2017, the Applicant applied for leave for judicial review.

Chronology of events

22.  Things happened in this order: –

2006	The Applicant entered Hong Kong illegally. He made a refugee application but withdrew it 3-4 months later, saying the feared problem had been resolved. He was then sent back to Pakistan in the same year.
2009-9-28	The Applicant left Pakistan for China.
2009-10-28	The Applicant entered Hong Kong illegally for the second time. He was arrested by the police and subsequently raised a torture claim.
2013-11-7	The Applicant confirmed his withdrawal of torture claim, saying his problem had been resolved.
2014-2-24	The Applicant was sent back to Pakistan for the second time.
2015-11-1	The Applicant again left Pakistan for China.
2015-11-6	The Applicant entered Hong Kong illegally for the third time. He surrendered to the Immigration Department.
2015-12-28	The Applicant raised a non-refoulement claim.
2016-5-19	The Director held a screening interview with the Applicant.
2016-6-2	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).
2017-3-1	The Director invited the Applicant to submit additional facts for the consideration of BOR2 risk.
2017-3-15	The Applicant failed to submit additional facts by deadline and thereafter.
2017-3-31	The Director refused the applicant’s claim with respect to the fourth applicable ground: risk (BOR2 risk).
2017-5-4	The Applicant appeared before the Board for appeal.
2017-6-21	The Adjudicator refused Applicant’s claim with respect to all the four applicable grounds.
2017-9-26	The Applicant applied for leave for judicial review.

Respondents

23.  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.

24.  In Form 86 (the notice of application for leave to apply for judicial review) [Folio 1], the Applicant named the Board and the Director as respondents. The Board is the first putative respondent; the Director is the second putative respondent.

Director of Immigration (the Director)

25.  In the Director’s decision dated 2 June 2016, the immigration officer did not make specific finding on the credibility of the Applicant. However, even on the strength of the Applicant’s allegations the officer assessed the level of risk of harm from the Applicant's alleged enemies was low and his feared risk was unlikely to materialise.

26.  The officer was aware there were reports of police corruption in Pakistan. Yet, there were also reports showing the Pakistan government had carried out their duties to protect their citizens. The officer did not accept reasonable state protection was not available to the Applicant. He also considered reasonable internal relocation was viable in the Applicant's case.

27.  The officer did not accept the Applicant would face real torture risk, persecution risk and BOR3 risk. He refused the Applicant’s claim with respect to those three applicable grounds.

28.  Later, the Director wrote to the Applicant inviting him to submit additional facts for the consideration of the fourth applicable ground, i.e. life risk (BOR2 risk). However, the Applicant did not respond by the deadline or thereafter.

29.  In the Director’s further decision dated 31 March 2017, the officer considered the Applicant failed to establish a personal and real risk of his rights under the HKBOR being violated (including right to life under BOR2). He refused the Applicant’s non-refoulement claim with respect to the fourth applicable ground: life risk (BOR2 risk).

TCAB/NCPO (the Board)

30.  Although the Adjudicator found the Applicant had given a largely consistent account of his claim, she had reservation of his credibility. The Applicant claimed he had active involvement in PPP activities. Yet, his knowledge of PPP was rudimentary. The Adjudicator did not find it plausible that the Applicant should remain a subject of interest to his alleged enemies after he had been out of Pakistan for many years.

31.  The Adjudicator gave the Applicant the benefit of doubt and accepted his account of happenings. However, the Applicant had admitted his problem was not from PML(N) but from N&Y, so the risk of his enemies’ finding him in his relocation in Pakistan was very low. The Adjudicator considered the Applicant was able to find a place of sufficient safety for relocation without undue hardship in a country of Pakistan’s size and diversity. She considered that internal relocation was viable in the Applicant's case.

32.  Since reasonable internal relocation was viable, the Adjudicator did not consider the Applicant was really at risk that needed non-refoulement protection. She refused the Applicant’s claim with respect to all the four applicable grounds.

Grounds for judicial review

33.  In his affirmation, the Applicant had these complaints: –

(a)  lack of legal representation after the Director’s decision;

(b)  lack of language assistance;

(c)  no reasons given by the Director in his further decision dated 31 March 2017;

(d)  lack of fair hearing.

Court hearing

34.  In Form 86, the Applicant requested a hearing.  The hearing was scheduled on 26 April 2018. The Applicant was absent.

35.  On 7 May 2018, the Applicant wrote to the court to say he had not received the notice of hearing. Another hearing was scheduled on 4 June 2018. The Applicant was present. A Punjabi interpreter provided interpretation service in court.

36.  The Applicant said he knew a little English. He had a friend who was an assistant to a lawyer. That friend helped him to prepare Form 86 and the affirmation.

37.  The Applicant said he probably had not received the Director's letter inviting him to submit additional facts for the consideration of BOR2 risk. Nevertheless, he confirmed he had submitted all information and documents to the Director and the Adjudicator for their consideration of his non-refoulement claim.

38.  The Applicant filed the current application for leave for judicial review on 26 September 2017 while the Board’s decision was dated 21 June 2017. Counting three months from then, the Applicant was late in his current application by 6 days. The Applicant admitted he knew the limitation period was three months. He explained he could not find the right person to assist him to file the current application and he also forgot to file the application on time.

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 the claimant.  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

41.  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 certioarari 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.

42.  In the present case, the Director's decision, the Director’s further decision and the Board’s decision were respectively dated 2 June 2016, 31 March 2017 and 21 June 2017. The Applicant should not seek judicial review against the Director's decision and further decision before the Board rendered its decision on 21 June 2017. Therefore, the relevant date to be considered as when grounds for the application for judicial review arose should be 21 June 2017.

43.  The Applicant only took out the current application on 26 September 2018. Given there was a grace period of three months for the filing, the current application was in fact 6 days late.

Legal principles for extending time

44.  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.

45.  The list of factors is not exhaustive; the exercise of consideration is “multi-faceted”. The overriding principle is of course one of fairness and in non-refoulement  cases high standards of fairness must be achieved.

46.  In court, the Applicant admitted he knew the limitation period was three months. He explained that he could not find the right person to assist him to file the current application and he also forgot to file the application on time. That was no good excuse. 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 consider applications for judicial review out of time ought to be taken, otherwise public administration would be thrown into uncertainty and chaos.

47.  The delay in the present case was only for 6 days but it was still an undue delay. There was no justification for the Applicant's lateness in his late application, which has no merits at all (see paragraphs 48-58 below). His application for leave for judicial review against the Director's decisions and the Board’s decision should be disallowed.

Merits

Lack of legal representation

48.  The Applicant complained that he had not been provided with sufficient legal assistance after the Director's decision dated 2 June 2016.

49.  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.[7] The Applicant cannot demonstrate to 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.

Lack of language assistance

50.  The Applicant complained that he had not been given sufficient interpretation/translation assistance.

51.  In court, the Applicant admitted he had a friend to help him to prepare Form 86 and the affirmation for judicial review. Apparently, the Applicant could find someone to assist him with interpretation/translation and dealing with English documents for him. I am sure that was the case at all material times. The Applicant has much exaggerated his problem of getting interpretation/translation assistance and handling English documents. 

52.  The Applicant complained he was not given a translation of his Non-refoulement Claim Form (NCF) because the Duty Lawyer Service wanted to save costs. If that was really the case, the Applicant could only be dissatisfied with the Service. However, the Duty Lawyer Service was not named by the Applicant as a respondent or an interested party. Furthermore, the Applicant only worried there might be mistranslation or misinterpretation. Such speculation was, however, not well-founded at all.

No reasons given by the Director in his further decision dated 31 March 2017

53.  The Applicant complained that the Director did not give reasons for his further decision dated 31 March 2017.

54.  The Director’s further decision dated 31 March 2017 was brief but it should not be read on its own. It must be read in conjunction with the Director's previous decision dated 2 June 2016, where there was a detailed analysis of the Applicant's case. The BOR2 risk was only a further issue to be considered by the Director on the basis of the already analysed facts and evidence. The Applicant had not submitted additional facts for the Director's further consideration. It is sufficient for the Director to express as he did in his further decision dated 31 March 2017 by saying the Applicant had failed to establish a personal and real risk of his absolute and non-derogable rights under the HKBOR being violated (including right to life under BOR2). The Director need not recite all the facts and analyses already stated clearly in the previous decision dated 2 June 2016.

Lack of fair hearing

55.  The Applicant again complained about lack of legal and language assistance. Those issues have just been dealt with.

56.  The Applicant criticised the Director for assuming he chose not to reply to the letter inviting him to submit additional facts relating to BOR2 risk. In court, the Applicant said he probably had not received that letter. However, he confirmed he had submitted all he had to the Director and the Adjudicator. Thus, he was not deprived of any chance to present his case fully. There is nothing to complain about.

57.  The Applicant criticised the Director for not attending the appeal hearing before the Adjudicator on 4 May 2017. I cannot see how the Director's absence would prejudice the Applicant's appeal before the Adjudicator.

58.  I have reviewed the Director's decision plus further decision and the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. I am satisfied the Director and the Adjudicator had proper basis for their findings, conclusions and decisions which were not Wednesbury unreasonable. They made no errors of law and there was no procedural unfairness. The Director and the Adjudicator had each 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 reports of the Director and the Adjudicator respectively showed they were acquainted with the facts and applied the law correctly. They considered the Applicant's case carefully. They were entitled to render those findings, conclusions and decisions which were all reasonable. None of the Applicant's complaints can stand. The Director and the Adjudicator had achieved the high standards of fairness required of the Applicant’s non-refoulement claim.

Conclusion

59.  The Applicant's complaints are not reasonably arguable either against the Director or the Board. 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