ALI LIAQAT v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL 2852/2018

[2022] HKCFI 927

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2852 of 2018

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 oral submissions by the Applicant in open court;

Leave to apply for Judicial Review refused.

Observations for the Applicant (Order by Deputy High Court Judge To):

Introduction

1.  This is the Applicant’s application by Form 86 filed on 12 December 2018 for leave to apply for judicial review of the notice of decision of the Director Immigration (the “Director”) rejecting his non-refoulement claim[1] and the decision of the Torture Claims Appeal Board/non-Refoulement Claims Petition Office (the “Board”) dated 30 March 2017 (the “Decision”).  But the Board was not named as a putative respondent.

2.  The Decision of the Board is reviewable by judicial process but not the decisions of the Director in the Notice because there are established statutory procedures of appeal to the Board and the Applicant has invoked the appeal procedures: Re Moshsin Ali[2].  The Director’s 2014 Notice was superseded by the Board’s Decision and is no longer susceptible to judicial review.  For the benefit of the Applicant, the Court treated his complaints against the Director as if they were directed at the Board also. 

3.  By the time the Applicant filed the present application, it is more than twenty months after the Decision was made.  It is more than seventeen months out of time.  Leave to apply out of time is required.  Thus, there are two major questions raised by this application.  These are: (1) whether to grant leave to apply for judicial review of the Decision and (2) whether to grant leave to make the above application out of time.  Central to both questions is whether there is any merit in the intended judicial review.  It would be convenient to determine the first question first.  If the answer to the first question is in the negative, it must necessarily follow that the answer to the second question must also be in the negative.  If the answers to both questions are in the affirmative, the Court will direct an amendment to make the Board a proposed respondent and grant leave to apply out of time. 

4.  The Applicant did not ask for an oral hearing.  Having regard to the nature of the application, the evidence, the issues raised, and all the circumstances, the Court considered it appropriate to determine the application on paper.

The background

5.  The applicant is a Pakistani national.  He last left Pakistan in 2009 and entered Hong Kong via the Mainland.  He made a claim for protection to the Immigration Department under the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”) by a written representation dated 10 August 2009 (the “Torture Claim”).  By his letter dated 23 November 2009 about three months later, he informed the Immigration Department that he wished to cancel his claim (the “first withdrawal”).  By a letter dated 4 January 2010, the Immigration Department informed him that no further action will be taken on his claim.

6.  About three months later, by his letters dated 29 January and 29 April 2010, he requested to revive his Torture Claim.  The screening process was resumed.  His claim was processed under the Unified Screening Mechanism (“USM”) which provided wider grounds for protection (the “non-refoulement claim”). He was provided legal and language assistance in completing the torture claim form (“TCF”) and in attending the screening interview.  

7.  The Applicant filed his TCF on 30 January 2014. On 23 April 2014, above three months later, the Immigration Department received his notice of withdrawal dated 17 April 2014 stating, inter alia, that it was safe for him to return to Pakistan and he had no money to buy an air ticket (the “second withdrawal”).  By its letters dated 24 April 2014, the Immigration Department informed him and the Duty Lawyer Service then representing him that no further action will be taken on his non-refoulement claim.  A letter dated 5 May 2014 was received from the Duty Lawyer Service confirming his withdrawal.

8.  On 14 November 2014, about six months later, the Immigration Department received from the Applicant a written request dated 22 August 2014 requesting for re-opening of his non-refoulement claim on the ground that he would still be in danger going back to Pakistan.  By a letter dated 19 November 2014, an immigration officer informed him that his claim may be re-opened in accordance with section 37ZE(2) of the Immigration Ordinance, by showing that since the withdrawal, there has been change of circumstances which could not have been reasonably foreseen by him when giving the notice of withdrawal; and (ii) which when taken together with the material previously submitted for the claim could increase the prospect of success of the claim.  The officer specifically requested him to provide the following information within two weeks:

(i)     detailed reasons for the withdrawal of his non-refoulement claim on 17 April 2014 and evidence of such change of circumstances; or

(ii)    special circumstances by reason of which it would be unjust not to re-open his claim.

The officer reminded him that if he failed to provide the information and evidence requested, his application to re-open his claim would be assessed on the previous information on record.

9.  The Applicant did not respond.  On 11 December 2014, having assessed his claim on the basis of all information previously submitted by the Applicant, the immigration officer decided to refuse his application to re-open his claim.  By the 2014 Notice dated 11 December 2014, the Director refused his request for re-opening his non-refoulement claim.  The Director also advised him of his right to appeal/petition to the Board and the time limit for appeal.  A standard notice of appeal (“NOA”) was enclosed in the letter.

10.  On 22 December 2014, the Applicant filed his NOA with the Board.  His grounds and reasons for the appeal as stated in the NOA is:

“I still have problems in Pakistan. My cousin and enemy, Billa, wants to kill me if I go back to Pakistan because of the land problem. I am still afraid to be in Pakistan and that is why I cannot now go back to my country. If my problem has finished this time, I want to go back. Because Billa killed my uncle, father and mother before, and now he wants to kill me.”

11.  The Applicant’s appeal was heard before the Board on 23 September 2016.  On 30 March 2017, the Board issued the Decision dismissing his appeal.

12.  On 24 April 2017, the Immigration Department received the Applicant’s letter dated 21 April 2017 written in Urdu applying for non-refoulement protection under BOR 2 Risk ground. The Immigration Department replied by letter dated 4 May 2017 that that claim had already been finally determined by the Decision of the Board dated 30 March 2017.   

13.  Then, by three written representations dated 10 July, 8 August and 16 August 2017, the Applicant stated that he would like to apply for a subsequent claim because he still has problem in his country.  His written representations are considered as a request for making a subsequent claim under the USM.  On 29 December 2017, the Director issued a notice (the “2017 Notice”) refusing his request on the grounds that he has not provided sufficient evidence to show: (i) that there has been a significant change of circumstances since his non-refoulement claim was finally determined or withdrawn and (ii) his change of circumstances.  The Applicant did not appeal against the 2017 Notice.

14.  The issue raised by his appeal to the Board against the 2014 Notice is the propriety of the Director’s decision in refusing to re-open his non-refoulement claim.  There is no need to go into the details of his claim.  In gist, the basis of his claim is that his life is in danger in Pakistan because his cousin had threatened to kill him for refusing to transfer his share of land inherited from his father to the cousin and that his cousin had already killed his first uncle and injured him in the execution of his threat.  His cousin had threatened him on four occasions.  His cousin shot him on two of the occasions, injuring his ankle and causing a scratch on his wrist.  His case has been summarised by the Board in paragraphs 11 to 16 of the Decision.  

The law applicable to re-opening a claim

15.  The Applicant has withdrawn his claim by written notice in accordance with provisions of section 37ZE(1) of the Immigration Ordinance.  His claim may be re-opened pursuant to section 37ZE(2).  Subsections (1) and (2) of section 37ZE provide as follows:

“(1) A claimant may, before a torture claim is decided under section 37ZI, withdraw the claim by notifying an immigration officer in writing.

(2) Subject to section 37ZF(3), a torture claim that has been withdrawn under subsection (1) may be re-opened if the person who made the claim provides sufficient evidence in writing to satisfy an immigration officer that—

(a) since the withdrawal, there has been a change of circumstances that—

(i) could not reasonably have been foreseen by the person when the person gave the notification under subsection (1); and

(ii) when taken together with the material previously submitted for the claim, could increase the prospect of success of the claim; or

(b) by reason of special circumstances, it would be unjust not to re-open the claim.

Section 37ZE(2) provides two escapes for a claimant who has withdrawn his claim, namely, (i) material unforeseen change of circumstances since the withdrawal which when taken together with the material previously submitted could increase the prospect of success of the claim and (ii) special circumstances which would make it unjust  not to re-open the claim.

The finding of the Board

16.  The Board referred to the provisions of section 37ZE(2) and correctly identified the two issues raised by the Applicant’s application to re-open his claim.  These primary facts are documented and not disputed by the Applicant.  He has not provided any information in support of his application to re-open his claim to the Director or to the Board in his NOA.  He explained his omission on the ground that he had not received the 2014 Notice.  That explanation was rejected by the Board as he had pursuant to the 2014 Notice filed the NOA with the Board.  Regardless of the reason for his omission, in the discharge of its high standard of fairness, the Board explained to him through the interpreter and made sure he understood the information or material required to substantiate his case for re-opening and the possible adverse consequence on his failure to adduce such information or material and the Director’s letter of 19 November 2014: see paragraph 8 above.  He confirmed he understood what was explained.  When asked if he had any information or material to provide, he maintained that he had no additional information to give apart from saying that it was still not safe for him to return to Pakistan. 

17.  Despite the Applicant had adduced no evidence to show change in circumstances since the withdrawal, in the discharge of its duty to attain a high standard of fairness, the Board carefully examined what the Applicant said since the withdrawal of his claim with a view to discover if there is any suggestion that there had been significant changes in circumstances that he might not be fully aware of or that he could have made use of.  But the Board could find none.  Thus the Board found he had not made out a case under the first limb under section 37ZE(2)(a), ie the first escape.

18.  The Board then explored the second escape.  It reminded itself that the scope of special circumstances intended by the section should be wide.  It made an assessment of the nature and basis of the Applicant’s claim and the level of risk of harm he might face if returned to Pakistan for the purpose of considering whether these might constitute special circumstances making it unjust not to re-open his claim.  The Applicant’s father was the owner of the land in issue when he was alive; the land was to be distributed to the Applicant and his five siblings, but his father was never threatened during his lifetime.  The Applicant explained that he only was targeted because he actively confronted his cousin.  With his father’s demise in 2011 or 2012, the greed element of his cousin’s motivation to harm or threaten the Applicant is reduced as the Applicant now only owns one-sixth of the land.  Though his siblings have been threatened since his father’s death, they had never been harmed.  Despite his cousin had ample of opportunities to kill him, he has not been seriously harmed, indicating that the level of risk of serious harm was low.  The Board held even if the non-refoulement claim is to be re-opened, the likelihood of the Applicant substantiating the required level of future risk of harm is small unless there are additional information or material.  The Applicant has ample opportunities to provide such material but has failed to do so.  Furthermore, what is at stake now is purely a one off economic loss represented by the value of his share of the land (about 500 square metres).  Accordingly, the Board concluded that there are no special circumstances within the meaning of section 37ZE(2)(b) which would make it unjust not to re-open his claim.  Hence, the Board dismissed his appeal. 

The legal principles applicable to judicial review    

19.  The role 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.  The court will scrutinize 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[3].

Merit of the application to re-open

20.  As explained above, the role of the court in judicial review is not to re-assess the non-refoulement claims afresh.  Absence any specific grounds for the application, the court will focus on the usual challenges of an administrative decision, ie errors of law, procedural unfairness or irrationality.

21.  Having rigorously examined the Director’s 2014 Notice, the NOA, the Board’s Decision, the Applicant’s grounds for application and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly set out the law and key legal principles relating to an application to re-open a claim pursuant to section 37ZE(2).  The Board clearly understood that its duty was to consider the Applicant’s claims afresh and not just whether to uphold or dismiss the Director’s decision in the Notice.  It correctly identified the factual and legal issues involved in the claim.  The Decision of the Board was based on the Applicant’s failure to adduce evidence of change of circumstances since the withdrawal of his claim.  That is incontrovertible.  The Board reminded itself of the duty to attain a high standard of fairness.  It gave the Applicant a second opportunity to produce evidence of change of circumstances and assessed his non-refoulement claim on the basis of his case as asserted to determine whether it would be unfair not to allow him to re-open his case.  It was on that basis that the Board was satisfied that he is not entitled to and hence dismissed his appeal against the Notice.  The Decision of the Board is unreproachable.  The Applicant’s intended judicial review has no prospect of success. 

Merits of the application to apply for judicial review out of time

22.  Order 53, rule 4(1) of the Rules of the High Court provides that an application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when the grounds for application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made.  An application made after three months is deemed to have been made with undue delay.  To obtain extension of time for making an application, the applicant has to satisfy the court that there are credible valid explanations for the delay. 

23.  In AW and Director of Immigration and William Lam[4], the Court of Appeal held that 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:

(1)      length of delay;

(2)      explanation for the delay;

(3)      merits of the substantive application;

(4)      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; and

(5)      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.

24.  By the time the Applicant filed his application, it was more than twenty months after the Decision was made.  Even if an application was made at that time, it was more than seventeen months out of time.  The delay is very substantial. 

25.  The Applicant did not give any explanation for the delay.  The Court could have invited him to give an explanation.  For obvious reason, this is going to be a futile exercise and is unnecessary.

26.  For reasons as explained in the sections above, there is no prospect of success in the intended application for judicial review.  It must necessarily follow that the Applicant will suffer no prejudice if extension of time is not granted.  If granted, the proposed respondent will suffer prejudice having to incur costs and time to resist an application which is doomed to fail.  On the other hand, the access to court by other non-refoulement claimants will be delayed.   Besides, the application does not raise any question of general public importance.  Hence, leave to apply out of time will not be granted.

Conclusion

27.  As the Applicant’s application was filed out of time and leave will not be granted for him to do so, his application for leave to apply for judicial review is refused.

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

[1] That decision was identified by the Applicant in his Form 86 as “(15) in USM 609/14/12/102/P178 and LK/M (4908) in IMMD RA 7/37/C which is referable to the Notice of Decision dated 11 December 2014 issued by the Director (the “2014 Notice”)

[2][2] [2018] HKCA 549

[3] [2018] HKCA 524 at para 14(1)

[4] CACV 63/2015 (unreported) 3 November 2015