SHAH SAQLAIN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 357/2019

[2024] HKCFI 697

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 357 of 2019

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 the Applicant being absent in open court;

Leave to apply for Judicial Review be allowed.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 11 February 2019 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board/the Non-Refoulement Claims Petition Office (the “Board”) dated 30 January 2019 (the “Decision”) refusing his late filing of Notice of Appeal (“NOA”) against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 23 May 2017 (the “Notice”).

2.  The Applicant had requested an oral hearing.  A hearing on 31 January 2024 was scheduled and notice of hearing was sent to him by post to his address as stated in his Form 86, which proved to be effective in communicating with him in November 2021.  It has not been returned through the post.  He never informed the court of any change of address.  There is nothing to suggest that he had not received the letter or had moved.   However, he did not appear at the hearing.  Having considered the nature of the application and issues raised, the Decision, the papers, the applicable legal principles and all the circumstances, the Court considered that the leave application may be justly determined on paper without an oral hearing.

3.  The Applicant is a Pakistani national.   He entered Hong Kong on 27 February 2015 illegally and was arrestedon 4 March 2015.  On 6 March 2015, he raised a non-refoulement claim.  In due course, his non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism (“USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4]. His claim was dismissed by the Director’s Notice.  He lodged his notice of appeal (“NOA”) against the Director’s Notice.  But the Board refused to accept his late filing.  He now applies for leave to apply for judicial review of that Decision.

The Applicant’s case

4.  The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim form (“NCF”) prepared by him with legal assistance and the record of his screening interview in the presence of his lawyer.    In gist, he claims that he would be harmed or killed by his the sons of his paternal uncle (the “Cousins”) upon his return to Pakistan because of a land dispute.

5.  The Applicant was born and raised in Village Mian Dheri, Tehsil Ghazi, District Haripur, Pakistan. When he was around five years old, his paternal grandfather died intestate. However, it was later discovered that his grandfather had transferred some plots of land to the Applicant’s father.  The Cousins were dissatisfied with the distribution of the land and occupied the land by force.  The Applicant claims that his Cousins were affluent drug dealers who had connections with the local police, which turned a blind eye to their illegal business. 

6.  When the Applicant was about ten years old, his Cousins brought men to the Applicant’s house and attacked his father, causing him internal injuries.  His father attempted to file a police report but the police asked for a bribe.  He therefore left the police station without making a report.

7.  One day in 2009 or 2010, when the Applicant returned home, he saw his Cousins and their men beating his father.  They were armed with wooden sticks.  The Applicant shouted to stop them.  His Cousin ordered the men attacked him as well.  Both he and his father suffered bruises all over their bodies.  It took the Applicant around one month to recover.

8.  His father and another uncle attempted to file a police report but they were detained in the police station.  The police arrested the Cousins as well.  Eventually, the four of them were released after the intervention by the village elders.

9.  About five or six months later, the Applicant was arrested by the police and detained overnight without any charge being laid against him.  His father then sent him to Karachi to further his studies in April or May 2011.  While away, the Applicant learned that his Cousins had vowed to kill him.

10.  When he returned home in March 2013, his father told him that he was in great danger from his Cousins because he was the only son in his family.  The Applicant flew to Mainland China in June 2013.  He had to bribe his way out of Pakistani.  Then at the suggestion of a fellow Pakistani friend, he sneaked into Hong Kong.

11.  The Applicant claims that internal relocation was not viable because his Cousins were very rich and could locate him anywhere in Pakistan through their connections with the police and political party.  He also did not want to live in Pakistan under constant fear.  He claims that state protection would not be available because he could not afford to bribe the police, while his Cousins would.

The finding of the Director

12.  The Director assessed the Applicant’s claim on the basis of the case as he asserted.  It found until the event in 2009/2010, the Applicant’s Cousins had the chance to seriously harm or kill him, but they never did.  During the incident in 2009/2010, he only suffered minor injuries. Thereafter he was not harmed at all.  His Cousin knew where he lived and could have caused him serious injuries, if they wished to, but they refrained from doing so.  Hence, he Director found the Cousins had no intention to cause him serious harm. 

13.  On the basis of authoritative and credible country of origin information (“COI”), the Director found there is an established police system in place in Pakistan and there have been ongoing improvements in police professionalism.  He found the dispute between the Applicant and his Cousins a personal dispute.  He rejected the Applicant’s argument that he could not access state protection because of his Cousins’ connection with the police, a member of the Provincial Assembly and PML(N) as there was no indication that the Provincial Assembly and PML (N) would be involved in the private dispute between the Applicant and his Cousins.  While accepting the Applicant’s evidence that the police refused to allow his father to file a complaint, the Director found that does not necessarily suggest that the entire Pakistani police force would be indifferent in the handling of his father’s case.  The Director also rejected his argument that his Cousins would bribe the Pakistani police as speculative.  The Director was therefore satisfied that adequate state protection is available to the Applicant.

14.  The Director also considered internal relocation to populous cities like Karachi or Lahore a viable alternative to reduce or negate the perceived risk.  In fact, the Applicant had lived in Karachi safely for nearly two years between 2011 and 2013.  The Director also found, given his age, education and experience, it would not be unduly harsh for the Applicant to so relocate. 

15.  For the above reasons, the Director found the Applicant had failed to prove if expelled to Pakistan, he will face a genuine and substantial risk of being subjected to ill-treatment which would attain a minimum level of severity as to entitle him to protection under BOR 3 Risk ground.  For the same reasons, the Director found he has failed to establish a personal and real risk of being deprived of his life in violation of BOR 2(1) Risk ground.  Obviously, BOR 2(2) to (6) risks are not engaged as it is not his case that he is at risk of genocide or that a death sentence has been passed on him.

16.  In respect of the Persecution Risk ground, the Director found the Applicant’ feared harm did not arise from one or more of the reasons set out in the 1951 Convention relating to the status of Refugees and its 1967 Protocol, ie for reason  of a person’s race, religion, nationality, membership of a particular social group or political opinion.

17.  For the same reasons as stated in paragraph 14 above, the Director did not accept there are substantial grounds for believing that the Applicant would be subjected to torture by his Cousins.  In addition, there is no evidence indicating that the ill-treatment inflicted on him was by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.   Hence, the Director found he is not entitled to protection under the Torture Risk ground.

18.  For all these reasons, the Director refused the Applicant’s claim for protection under all four applicable grounds.

The relevant legal provisions relating to late filing of NOA

19.  Under the non-refoulement protection regime, a claimant aggrieved by the decision of the Director may appeal that decision by filing a NOA with the Board within 14 days after the notice of decision has been given to him: Section 37ZS(1) of the Ordinance and Paragraph 8.1 of the Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme (the “Petition Guide”).  Failing that, he may also make a late filing, pursuant to Section 37ZT(1) of the Ordinance, by giving a statement of the reasons for his failure accompanied by all available supporting evidence.  For that purpose, Section 5 of the NOA form is designed as an application for late filing for the claimant to state the reasons for his failure when filing the NOA. 

20.  Section 37 ZT(2) of the Ordinance and Paragraph 9.2 of the Petition Guide mandate the Board to decide, as a preliminary decision without a hearing, whether to allow the late filing.  The subsection also requires the Board to only take account of the statement of reasons stated in Section 5 of the NOA, the supporting evidence relied on and any other relevant matters of fact within the knowledge of the Board.  Under Section 37ZT(3) of the Ordinance and Paragraph 9.3 of the Petition Guide, the Board may allow the late filing if the claimant has provided sufficient evidence in writing to satisfy the Board that he had exercised all due diligence to file the NOA within time but failed because of circumstances beyond his control. 

The Applicant’s explanation for the delay

21.  In Section 5 of the NOA, the Applicant gave the following explanation for the late filing:

“With due respect I want to say that the reason that I filed my Appeal application late Because I was in preson (sic) and did not know about the procedure of filing the application of Appeal. And I don’t know how to read and write. As there was no body who can helped me. Now I came to C.I.C. Now I am in C.I.C. Here I met a friend And he helped me to filled Appeal application form. So that’s the reason I filled appeal form late. And Apologise for this Act. So I request to appeal board to accept my late appeal against decision of Immigration Department I shall be thankful for your response. Thanks.”

22.  In essence, the Applicant’s explanation for the delay is that he did not know about the time limit and procedure for appeal and he had no language assistance while in prison to enable him to prepare his NOA.  It was only until his current remand in C.I.C. (understood to mean the Castle Peak Bay Immigration Centre) that he was able to enlist the assistance of a co-inmate.

The finding of the Board

23.  The Board adopted the three stage approach as laid down by the English Court of Appeal in The Secretary of State for the Home Department v Begum[5] to determine whether to allow extension of time to enable a litigant to take any procedural steps out of time.  The Board accepted that the Director’s Notice was sent to the Duty Lawyer Service (“DLS”) then acting for the Applicant on 23 May 2017.  Under section 37ZV(3), the Notice was deemed to have been served on the Applicant on the second day after posting, ie 25 May 2017.  The last day for filing the NOA fell on 8 June 2017.  The Applicant filed his NOA on 22 September 2017.  It was three months and 14 days late.  Under the first stage of the Begum analysis, the Board found the delay of three months and 14 days is a serious and significant failure to comply with the rules.

24.  The Board noted that in Paragraph 49 of the Notice is a statement informing the Applicant that if he is aggrieved by the decision in the Notice, he must file his NOA with the secretariat of the Board within 14 days after the date of the Notice.  The address for filing the NOA was provided in that paragraph and a copy of the appeal form was attached to the Director’s Notice.  The Board therefore held that the Applicant must have been advised about the time limit for filing the NOA by the DLS when the DLS delivered and explained the Notice to him.  The Board also held that he could have reached out to the DLS for assistance, even when he was in custody.  The Board therefore found that the reason given by the Applicant could not adequately explain why he was late by over three months.  It therefore concluded in the second stage of the Begum analysis that the Applicant’s explanation based on lack of knowledge about appeal procedure and lack of language assistance are not good reasons for the breach.

25.  The Board went on to evaluate all the circumstances in this case and arrived at the conclusion that it is fair and just to refuse the late filing.  It then tested that conclusion the other way round.  It found there were no other matters known to the Board or revealed by the factual basis of the applicant’s claim which might amount to special circumstances and which might make it unjust not to allow the late filing.  Hence, it refused the late filing.

The legal principles applicable to judicial review

26.  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[6].  

Grounds for judicial review

27.  The Applicant did not advance any grounds of review in his Form 86.  In his supporting affirmation, he said he was not satisfied with the Decision of the Board because his life is not save in his home country.  In essence, he is seeking to challenge the finding of fact by the Director that his risk of harm is low and it is safe for him to return to Pakistan.  It is manifestly obvious that these grounds are directed at the Director’s decision in the Notice and not at the Board’s Decision refusing his late filing, which is the subject matter of this leave application.  In the absence of specific grounds of application or grounds with sufficient particulars, the Court could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision. 

Discussion

28.  The issue raised by this application is the propriety of the Board’s Decision refusing the Applicant’s late filing of his NOA.  The leading authority on this issue of whether to allow extension of time for a litigant to comply with procedures is the English Court of Appeal decision in The Secretary of State for the Home Department v Begum[7].  The first stage of the Begum analysis is to identify and assess the seriousness or significance of the failure to comply with the rules.  The second stage is to consider why the failure occurred, that is to say whether there is a good reason for it.  The third stage is to evaluate all the circumstances of the case, so as to enable the court to deal justly with the application.

29.  The Board correctly directed its mind to the Begum analysis.  The first two stages are simple finding of fact which seldom present any problem.  The third stage is more problematic.  Until the Court of Appeal decision in Re Madbar Abdul Salam[8] published in June 2019 the adjudicators were divided as to whether merits of the intended appeal is one of the factors to be considered in deciding whether there were special circumstances.  In that case, the Court of Appeal put it beyond doubt that the three-stage analysis in Begum includes a consideration of the merits of the intended appeal as part of the special circumstances whether it would be unjust not to allow the late application.  This statement of the law is applicable to the Applicant’s appeal under the previous version of the Immigration Ordinance in force at the time of the appeal.

30.  In the present case, it is not clear whether the Board had considered merits of the intended appeal.  The Board held in one sentence that there were no other matters known to it or revealed by the factual basis of the applicant’s claim which might amount to special circumstances and which might make it unjust not to allow the late filing.  The brevity with which this issue was dealt with in the Decision suggests it had not.  The Board should have, under section 37ZT(2)(b) of the Immigration Ordinance, taken account of the merits of the appeal albeit on paper without a hearing, regardless of the procedural breaches or lack of explanation therefor. That is a procedural irregularity. 

31.  Accordingly, leave is granted for the Applicant to apply for judicial review of the Board’s Decision on the ground that it is erroneous in law and procedurally unfair to refuse the late filing of the NOA without considering the merits of the Applicant’s appeal.

Conclusion

32.  Accordingly, leave to apply for judicial review is allowed.  The Applicant is reminded of his obligation to comply with the standard directions on page 7 of this Form CALL-1 within the time limit stated therein.

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