RE KHAN KAMAL AHMED

CACV 563/2018

[2019] HKCA 377

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 563 OF 2018

(ON APPEAL FROM HCAL 899 OF 2017)

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J U D G M E N T

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Hon Lisa Wong J (giving the Judgment of the Court):

The appeal

1.  This is an appeal by the abovenamed applicant, Mr Kamal Ahmed KHAN, against the order made by Mrs Justice Campbell-Moffat (“Judge”) on 29 November 2018 refusing him leave to commence judicial review proceedings to quash the decision of the Torture Claims Appeals Board (“Board”) given on 31 October 2017 (“Board’s Decision”), which dismissed the applicant’s appeal against the rejection by the Director of Immigration (“Director”) of his non-refoulement claim (“NRF Claim”) by a notice of decision dated 22 January 2016 and a notice of further decision dated 22 November 2016 (“1^st Director’s Decision” and “2^nd Director’s Decision” respectively).

Basis and allegations in support of NRF Claim

2.  The basis of the NRF Claim made by the applicant, a national of Pakistan born in 1991, is a fear of harm by one Nazabur and members/supporters of the Pakistan Muslim League (N) (“PML(N)”) because the applicant was witness to a murder committed by one Jabar who is Nazabur’s brother and a member of PML(N).  Such alleged fear is said to arise out of the following circumstances:

(1)   The applicant was born and raised in Village Malu, Tehsil Hazro, District Attock, Punjab, Pakistan.

(2)   He became a member/supporter of the Pakistan Tehreek-e-Insaf (“PTI”) in 2007 under the influence of his family, but his involvements were limited to voting in elections, attending campaigns and putting up party posters.

(3)   During the general election for Prime Minister in May 2013, he was involved in a fight between people from the PTI and the PML(N) over election malpractices by the PML(N).  During the confrontation, the applicant saw a member of PTI called Mohammad IKRAM shot by Jabar.  Ikram died.  The applicant was himself injured in his right thumb and his leg.

(4)   The police arrested Jabar on the next day.  In mid July 2013, the applicant and another witness called Waseem KHAN appeared at the Attock court and gave evidence against Jabar.  The applicant did so despite having been threatened by Nazabur not to do so.  Zazabur started by making threatening phone calls to the applicant twice a week.  In June 2013 Nazabur and 3 other members of the PML(N) approached the applicant 4 times to warn him.  On one occasion, Nazabar pointed a pistol at the applicant’s head.  The applicant attempted to report the threats made by Nazabar against him to the police in Rangu but they took no action and just told him not to worry.  Jabar was convicted and sentenced to capital punishment. 

(5)   In mid August 2013, Waseem Khan was found shot to death in a village at night.

(6)   Fearing for his own safety, the applicant went to Attock for 1½ days to apply for a passport so that he could leave Pakistan.

(7)   The applicant then fled to Karachi.  While in Karachi, he was told by his brother that Nazabur’s friends had constantly gone to his home to ask for the applicant’s whereabouts. The continuing threats put the applicant under tremendous stress and caused sleeping problems.

(8)   The applicant was issued with a passport on 16 August 2013. He left for mainland China on 25 October 2013 and returned to Islamabad, Pakistan on 13 November 2013.  He left Pakistan again for Guangzhou, China on 28 December 2013.

Entry into Hong Kong and lodgment of NRF Claim

3.  The applicant entered Hong Kong illegally from mainland China on 3 January 2014.  He was arrested on the same day.  After his arrest, he lodged the NRF Claim by written representation on 5 January 2014.  After his arrival in Hong Kong, the applicant maintained contact by telephone with his mother who told him that PML(N) members/supporters still approached his family around once a month to ask for his whereabouts.

Director’s Decision

4.  In processing the NRF Claim, the Director’s representative interviewed the applicant who received legal assistance from the Duty Lawyer Service. 

5.  The 1^st Director’s Decision covered torture risk[1], persecution risk[2] and “BOR 3” risk[3].  The Director found no substantial grounds for believing that the applicant would be in danger of being harmed by Nazabur and/or members/supporters of the PML(N) upon his return to Pakistan. 

(1)   First, his failure to disclose in his Non-refoulement Claim Form the material facts that he had gone to mainland China and that he had returned from China to Pakistan first before coming to Hong Kong and his failure to satisfactorily explain such omission undermined the credibility of his claim.

(2)   Second, the intensity and frequency of past ill-treatment suffered by the applicant at the hands of Nazabur and his associates was in any event assessed to be low and indicative of unlikely future risk of harm even if the applicant is returned to Pakistan.

(3)   Third, the objective country of origin information shows that reforms in the Pakistan police have been and are ongoing.   The availability of state protection would negate or lower the level of risk (if any).

(4)   Fourth, many reasonable internal relocation alternatives are available to an able-bodied adult like the applicant.  He had in fact lived in Karachi and Islamabad without encountering any problem from Nazabur or other people from the PML(N).

6.  Following the 1^st Director’s Decision, by a letter dated 3 November 2016, the applicant was invited to submit additional relevant facts on or before 17 November 2016 so that the Director could take them into account in considering the NRF Claim on any other applicable grounds.  The applicant did not respond to such invitation.  In the absence of additional information, by the 2^nd Director’s Decision, the Director also rejected the NRF Claim for failing to establish a “BOR 2” risk[4].

Appeal to Board and Board’s Decision

7.  Pursuant to s 37ZS of the Immigration Ordinance (“Ordinance”), the applicant could appeal against the Director’s rejection of the NRF Claim to the Board within 14 days, which expired on 5 February 2016 for the 1^st Director’s Decision and 6 December 2016 for the 2^nd Director’s Decision.

8.  However, the applicant’s notice of appeal to the Board was dated 13 June 2017 and reached the Board on 16 June 2017, which was almost 1½ year after the date of the 1^st Director’s Decision and almost 7 months after the date of the 2^nd Director’s Decision.[5]  In such situation, the notice of appeal is required by s 37ZT to include an application for late filing of the notice, which must include a statement of the reasons for failing to file the notice within time and be accompanied by any documentary evidence relied on in support of the reasons.  However, section 5 of the applicant’s notice of appeal, which contains such an application, was left blank.  Consequently, the applicant’s notice of appeal did not explain his delay.

9.  As the applicant had not provided any reason for the delay, the Board considered that it had no basis on which to exercise the statutory discretion to extend the time limit and disallowed the applicant’s application for late filing of his notice of appeal.

Application for leave for judicial review and Judge’s Decision

10.  By a Notice of Application for Leave to Apply for Judicial Review issued under HCAL 899/2017 on 14 November 2017 (“Form 86”), the applicant sought leave to apply for judicial review of the Board’s Decision.[6] The Form 86, however, did not state any grounds on which relief was sought.  The supporting affirmation filed on the same date complained that the Board’s Decision was unfair.

11.  As the applicant did not request an oral hearing, the Judge considered the application, and refused leave, on the basis of the materials before her.  Her reasons can be found in [9]-[12] of the Call-1 form dated 29 November 2018, [2018] HKCFI 2145 (“Call-1 Form”):

“9. The process of consideration of an application for late filing of a Notice of Appeal is carried out without a hearing by way of preliminary decision. The Adjudicator set out subsection 1-4 of s 37ZT. In The Secretary of State for the Home Department v Begum (2016) EWCA Civ 122, 3 March 2016 the court alluded to a three‑stage approach which is:

(i) The first stage is to identify and assess the seriousness or significance of the failure to comply with the rules. If the breach is serious or significant, the decision maker then considers the second and third stage.

(ii) The second stage is to consider why the failure occurred. If there is a serious or significant breach and no good reason was given for the breach, then the decision maker moves to the third stage.

(iii) The third stage is to evaluate all the circumstances of the case, so as to enable the court to deal justly with the application. In considering all the circumstances of the case, the decision maker also takes into account (a) the need for litigation to be conducted efficiently and at proportionate cost, and (b) the need to enforce compliance with riles (sic), practice and directions and court orders.

10. The Adjudicator considered the chronology of events as submitted by the Director and found that no good reason for the late filing had been given. She noted the significant time delay; that the relevant documents had been sent to the Applicant by the DLS and the Further Decision had been sent to the applicant’s last known address and that no sufficient reason had been given for why he had failed to file the notice of appeal within time. At that stage the Adjudicator said “As K had not provided any reason for his delay, the Board has no basis on which to exercise any statutory discretion to extend the time limit”. That is not correct. It was open to the Adjudicator to consider subsection (3) of section 37ZT and the guidance given at (iii) above. That required the Adjudicator consider all of the “matters of fact” i.e. circumstances of the case, known to her, so as to deal justly with the application. Whilst that included consideration of the need for efficient and proportionate costs of litigation and the public policy benefits of enforcing compliance with rules of procedure and practice, it was not limited to those two elements. It is inherent in matters such as these that the relevant authorities do not lose sight of the underlying potential risk to claimants of danger to their life and liberty if refouled to their home state. It was incumbent upon the Adjudicator, in the exercise of her discretion, to take the merits of the Applicant’s case into account at this stage, as she was allowed to do under the relevant section, regardless of the breaches of procedure which she found and the lack of explanation for those breaches. This is more especially important when dealing with foreign nationals whose first language is neither Chinese nor English and who may very well not understand our common law system.

11. There were no grounds of review save for a general allegation that the Adjudicator had been unfair. The Applicant has not complained of any specific procedural irregularity, unfairness or unreasonableness. The Applicant has a duty to state the grounds of his intended judicial review and that they are reasonably arguable and enjoy a realistic prospect of success: Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676. I have nevertheless considered whether the papers indicate any such ground for the purposes of considering whether to grant leave. Given the comments above, the issue for this court on this application for leave, is whether the outcome would have been any different if the Adjudicator had considered the underlying merits of his claim and whether, simply remitting this matter back to her upon a successful application for judicial review, will alter the final result in any way. It will not. It will merely cause further delay and expense. The Applicant’s case was not accepted by the Director and, at its highest, did not meet the standard of proof placed upon him. It does not have sufficient merit to alter the view of the Adjudicator not to grant leave.

12. In my judgement, whilst there is a reasonably arguable basis upon which the Applicant could found a claim for judicial review of the decision of the Adjudicator to refuse to allow late filing of his Notice of Appeal on the basis that the Adjudicator had a discretion to consider the papers before her and the merits of the underlying claim,  there would be no realistic prospect of success before the Adjudicator on an application for extension of time to file his notice of appeal if he were to be granted leave.  I therefore refuse leave for judicial review.”

Appeal to Court of Appeal and grounds of appeal

11.   By a notice of appeal filed herein on 3 December 2018, the applicant appealed against the refusal of leave for judicial review on these grounds.  The applicant has, however, not stated any or any proper ground of appeal and merely asserted that his life is not safe in his own country.

12.  His written submission dated 22 February 2019 runs along the same theme. 

13.  The applicant appeared in person at the hearing of the appeal on 25 March 2019.  In answer to the court’s question as to why his appeal to the Board was so much out of time, the applicant said that he was in prison.  He was, however, unable to state the precise period of his imprisonment.  The only information that he could provide was that he was arrested on 20 June 2016 but he was granted bail; that he was jailed for a year; and that he was released on 20 June 2017.  He otherwise had nothing to add to his grounds of appeal or written submission.

Court of First Instance’s role in judicial review in non-refoulement claim

14.  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.  The role of the court in judicial review is not to re-assess the non-refoulement claim.  The court will scrutinise the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality. See Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(1)].

Court of Appeal’s approach in appeal against refusal of leave for judicial review in non-refoulement claim

15.  An appeal against a refusal of leave to apply for judicial review is not the occasion for the Court of Appeal to examine the decision of the Board afresh.  What the appellate court is concerned with is the decision of the judge at first instance which is considered in light of the grounds of appeal raised by the applicant.  The Court of Appeal shall interfere only if the judge had erred in law, failed to take into account a relevant matter or was otherwise plainly wrong.  See again Nupur Mst v Director of Immigration at [14(2)].

Discussion

16.  Section 37ZT(3) of the Ordinance gives the Board the discretion to allow the late filing of a notice of appeal if it is satisfied that by reason of special circumstances, it would be unjust not to do so.

17.  Where a notice of appeal to is filed out of time, s 37ZT(2) mandates the Board to decide as a preliminary decision without a hearing whether it allows the late filing of the notice of appeal, and in doing so, to take account of “any other relevant matters of fact within the knowledge of the Board” apart from the explanation for the delay.

18.  As the last of the 3-stage enquiry alluded to in The Secretary of State for the Home Department v Begum, referred to in [9] of the Call-1 Form, where there is a serious or significant breach for which no good reason is given, the decision maker moves to evaluate all the circumstances of the case with a view to dealing justly with the application.

19.  In this case, the Board stopped after the 2^nd stage, noting that the applicant had not provided any reason for the delay.  It had not taken account of any other facts or circumstances of the case. 

20.  We agree with the Judge that it was incumbent upon the Board, in exercise of its discretion to extend time for appeal, to take the merits of the applicant’s case into account regardless of the procedural breaches or the lack of explanation therefor.

21.  We, however, beg to differ with the Judge over her decision to herself consider “whether the outcome would have been any different if the [Board] had considered the underlying merits of [the applicant’s] claim and whether, simply remitting this matter back to the [Board] upon a successful application for judicial review, would alter the final result in any way”.

22.  As stated above, the primary decision-makers in a claim for non-refoulement are the Director and the Board.  The role of the court in judicial review is not to re-assess the non-refoulement claim but to scrutinise the Board’s decision for errors of law, procedural unfairness or irrationality.  The discretion to extend time for appeal is vested in the Board.  It has in this case exercised such discretion wrongly by failing to undertake the exercise of seeing if there were any relevant facts or circumstances to take into account.  Upon a successful judicial review of the Board’s Decision, the decision should and would have been quashed and the matter just remitted back to the Board to see if, in the circumstances of the case, it should extend time so as to undertake the re-hearing process. 

23.  We also have difficulty with the Judge’s reliance on the Director’s rejection of the NRF Claim, without in any way analysing the underlying reasoning, as the reason for concluding that the claim is without merit.  A non-refoulement claim would not have reached the Board without having been rejected by the Director in the first place and the hearing before the Board is in the nature of a fresh rehearing.

24.  For these reasons, we are of the view that the intended application for judicial review is reasonably arguable, meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

25.  We have not lost sight of the fact that this is not how the applicant argued this appeal in his notice of appeal or submission.

26.  As stated in paragraph 15 above, the Court of Appeal considers the decision of the judge at first instance in light of the grounds of appeal raised by the applicant.  We have no intention to derogate from such principle.  Nevertheless, this Court has a discretion, not to be exercised lightly, to allow new grounds to be canvassed in the interest of justice.  See, for example, Re MD Zahidur Rahman Manik, CACV 314/2018, [2018] HKCA 766, 29 October 2018. 

Disposition

27.  We would therefore allow the appeal and grant leave to the applicant to apply for judicial review.  In accordance with Order 53 rule 5, he should file and serve an originating summons within 14 days from the date of this judgment.  The originating summons should set out the ground that the Board had failed to consider the substance of his non-refoulement claim, which is a relevant matter of fact within the Board’s knowledge within the meaning of s 37ZT(2)(b) of the Immigration Ordinance.