AWAIZ KHAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL526/2019

[2022] HKCFI 1356

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 526 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 oral submissions by the Applicant in open court;

1. Leave to amend The notice of application for leave to apply for Judicial Review (“Form 86”) be granted;

2. Extension of time to apply for leave for Judicial Review be refused; and

3. Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 for leave to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (the “Board”) dated 26 September 2018 (the “Decision”)[1]. His application was filed out of time by almost two months.  It was treated as if it included an application for extension of time for leave to apply for judicial review as well.

2.  The Applicant did not request an oral hearing.  Having considered the nature of the application and issues raised, the Decision, the papers, and all the circumstances, the Court considered it appropriate that the application be determined on paper without an oral hearing.

3.  The Applicant is a Pakistani national, now aged 30.  He entered Hong Kong illegally by speedboat on 13 July 2015 and was arrested the next day.  He was referred to the Immigration Department on 17 July 2015 and he lodged a non-refoulement claim on 23 July 2015.

4.  In due course, his non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism (“USM”), namely: Torture Risk[2]; BOR 3 Risk[3]; Persecution Risk[4]; and BOR 2 Risk[5].  By a Notice of Decision dated 17 January 2018 (the “Notice”), the Director of Immigration (the “Director”) rejected his claims under all four applicable grounds.  The Notice was sent to the Applicant by post.

5.  On 29 March 2018, the Applicant lodged his notice of appeal (“NOA”) with the Board to appeal the decision of the Director in the Notice.  On 26 September 2018, the Board issued the Decision refusing his application for late filing of the NOA.  On 25 February 2019, almost five months after the date of the Decision, the Applicant applied for leave to apply for judicial review of that Decision.  His application for leave to apply for judicial review is out of time by two months. Thus, the Applicant is “double late”.  He is late in his appeal against the Notice and late in his application for leave to apply for judicial review of the Decision refusing his late filing of the NOA.

6.  The Decision sought to be reviewed revolved around a very narrow compass, ie the appropriateness of the Board’s refusal of the late filing of the NOA.  The Applicant’s case for non-refoulement protection and the Director’s Notice refusing his claim for protection were not the subject matter of the Decision but part of the background leading to his appeal to the Board and its Decision.

The Applicant’s case

7.  The Applicant was born and raised in Attock city, Punjab, Pakistan.  He joined the family business in trading cattle in Peshawar in 2006/2007 when he was 15 years old.  Peshawar was close to the border between Pakistan and Afghanistan.

8.  In 2010, the Applicant formed a partnership with three Afghan brothers (the “brothers”) who were all older than him.  The Applicant invested one million Pakistan rupees while the brothers invested five million rupees.  The brothers claimed to have the support of the local Afghan government, which made it easy for them to cross the border into Pakistan.

9.  In around mid-2015, the cattle kept by the brothers had become sick and some died.  The partnership suffered loss to the tune of thousands of millions of rupees.  For reasons unknown to the Applicant, the brothers blamed him for the loss and demanded “immediate refund of all [his] partnership loan”[6].  They threatened to kill the Applicant unless he repaid them.

10.  The Applicant returned to his parents’ home in Attock city.  One night, the brothers together with four other men came and assaulted him.  They were armed with guns and knives but the Applicant managed to escape. 

11.  The Applicant fled to Sawabi where he stayed for about three weeks.  During that time, he received 7 or 8 life-threatening phone calls from the brothers.  Then, he fled to Hong Kong.

The Director’s decision in the Notice

12.  The immigration officer assessed the Applicant’s claim on the basis of the case as asserted by him. Based on the Country of Origin Information, the officer assessed his risk of harm to be low and that state protection and internal relocation are available to prevent or avoid the risk and harm.  The immigration officer therefore found there was no substantial ground for believing that the risk of harm claimed by the Applicant is real and foreseeable, if refouled to Pakistan.

13.  The officer rejected the Applicant’s claim under BOR 2 Risk ground because BOR 2(2) to (6) ground relating to death sentence are not engaged and that the Applicant had failed to establish a personal and real risk of being arbitrarily deprived of his life in violation of BOR 2(1).  He also rejected the Applicant’s claim under BOR 3 Risk ground for similar reasons.

14.  For similar reasons, the immigration officer considered the Applicant’s fear was not well-founded and rejected his claim under Persecution Risk ground.

15.  The officer rejected the Applicant’s claim under Torture Risk ground mainly because the Applicant’s risk of ill-treatment was low and hence there was no substantial ground for believing that he will be subject to torture upon his return to Pakistan. 

16.  Lastly, the officer also found that adequate state protection would be available to protect the Applicant from harm by the brothers across the border.

The Board’s Decision

17.  Under section 37ZS of the Immigration Ordinance and paragraph 8.1 of the Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme, an appeal against the decision of the Director must be made within 14 days after the Notice was served on him.  Under section 37ZV(3), the Notice was deemed to have been served on the Applicant on the second day after posting, ie 19 January 2018.  Therefore, the last day the Applicant may file the NOA was 2 February 2018.  He was late by almost two months. 

18.  Section 37ZT(1)(a) mandates a late applicant to state the reasons for the late application in Section 5 of the NOA.  The reason given by the Applicant was that he was told by his mother to return to Pakistan because the situation there had improved, but on 24 March 2018 she told him that his enemies had attacked his home and would kill him if he returned.  

19.  The Board was satisfied that the Applicant had been advised in the Notice of his right to appeal to the Board and of the fourteen-day time limit for filing the NOA.  There was no complaint that the Notice had been delivered to the Applicant late. Thus, the Applicant had the benefit of the fourteen-day period to consider and file the NOA. 

20.  However, the Board was not satisfied with the lack of particulars explaining the late filing.  The Applicant did not provide particulars as to when he was told by his mother to go back to Pakistan, why the brothers had all of a sudden renewed the threat to kill him, and why they wanted to kill him which would destroy their source of repayment.  The Board was also not satisfied with the absence of explanation why it took another five days for the Applicant to file the NOA after having been told by his mother about the renewed threat.  The information was necessary to enable the Board to assess the credibility and merits of his explanation.

21.  The Board considered the explanation given by the Applicant was a bare assertion not supported by any evidence.  It found the Applicant had failed to provide sufficient information and documentary evidence to enable it to find whether there are any special circumstances which would make it unjust to refuse the late filing. 

Grounds of application

22.  The Applicant did not give any ground of application in the Form 86.  In his supporting affirmation filed on the same day, the Applicant said:

“…the Appeal Board gave me unfair decision. I am not satisfied from it. I submit appeal late because I was going back to Pakistan because problem was solved but one night my mother call me. She told me the opposition attacked in our home, that’s why I submit the appeal late. My life is still threaten by opposition”

The legal principles and issues

23.  There are two late events: (1) the late filing of the NOA which is the subject matter of the Decision; and (2) the late application for leave to apply for judicial review of the Decision.  The Applicant has two hurdles to overcome.  He has to obtain leave to apply for leave to apply for judicial review (the second hurdle) and to show the Decision to refuse his late filing of the NOA is somehow unjustified (the first hurdle) which is the background leading to the second hurdle.  It would be convenient to consider the second hurdle first.   

24.  Under Order 53, rule 4(1) of the Rules of the High Court, 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 the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made.  As the Decision sought to be reviewed was made on 26 September 2018 and the application for leave to apply for judicial review was made on 25 February 2019, it was two months out of time. 

25.  A delay of two months in making an application for judicial review is usually considered to be an undue delay.   In AW and Director of Immigration & Anor[7], the Court of Appeal held that in considering whether to extend time for appealing a decision refusing leave to apply for judicial review, the court will take into account:

(1) the length of delay;

(2) explanation for the delay;

(3) merits of the intended application;

(4) prejudice to the applicant vis-à-vis that to respondent if an extension of time is refused or granted; and

(5)  whether the application raises any question of general public importance.

26.  In considering the merit of the intended judicial review, it must be borne in mind that the role of the court in judicial review is not to re-assess the non-refoulement claim afresh.  The primary decision-makers in a claim for non-refoulement are the Director and the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (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 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[8]

Length of delay and reasons for the delay

27.  The application was two months out of time.  The delay is substantial whether in terms of duration or in the context of the time limit of three months for making the application. 

28.  In his supporting affirmation, the Applicant complained that the Decision was unfair.  He essentially repeated the same explanation he gave to the Board in Section 5 of his NOA.  He gave no explanation at all for the delay in bringing the intended judicial review. 

Prospect of the intended judicial review

29.  In his supporting affirmation, the Applicant complained that the Decision was unfair and repeated his explanation for the late filing of his NOA.  Other than stating his feeling that the Decision was unfair, he gave no particulars as to what was wrong with the Decision and what was the unfairness complained of.  The Board had considered his explanation for the late filing but found that he had failed to provide sufficient information and documentary evidence to enable it to find whether there were special circumstances which would make it unjust to refuse the late filing.  That is a finding of fact within the province of the Board.  The Applicant’s complaint of unfairness was in fact a complaint about the outcome of the Decision.  He had not identified any errors of law, procedural unfairness or irrationality in the Decision.  His application is in substance an appeal against the finding of fact by the Board dressed up as a judicial review.

30.  The Court had rigorously examined the Decision with anxious scrutiny.  The Court was satisfied that the Board had correctly set out the law and the legal principles (at least as at the date of the Decision) relating to late filing. What troubled this Court was that it appeared that the Board jump to the conclusion that there were no special circumstances known to the Board which would make it unjust to refuse the late filing without considering whether there were any merits in the intended appeal against the Notice.  The Court had an impression that as at the date of the Decision in September 2018 the adjudicators were divided as to whether merits in the intended appeal is one of the factors to be considered in deciding whether there were special circumstances.   This issue was settled by the Court of Appeal in Re Madbar Abdul Salam[9], a decision not available to the Board until a year later.   In that case, the Court of Appeal put it beyond doubt that the three-stage test 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.  There was no mention or analysis on merits in the Decision.  The Board might have considered merits but did not mention it on finding there was none; or it might not have considered merits at all. 

31.  Out of abundance of caution, the Court looked into the issue of merits and called for the NOA from the Board.  If there are arguable grounds for appeal, the Court shall remit the case to the Board for consideration on merits.  If there are no, the Court would proceed with its examination of Decision for procedural unfairness and irrationality.

32.  The Applicant’s grounds of appeal stated in Section 2 of the NOA are as follows:

“Before, I wanted to go that’s why I didn’t appeal. Because my mother told me to go back to Pakistan, because the situation has become better. I told my mother that if you are saying then I will come back, that’s why I didn’t appeal. Suddenly, on 24^th March my mother called me, and she was nervous and told me not to return to Pakistan because they would kill me. I asked mother that why are you crying and why are you so nervous. My mother said that the enemies have attacked at (our) home. At that time me, your brother and your sister were at home. Suddenly, they attacked in which my brother got injured and (my) mother and sister escaped from the back door of home and my brother was severely injured. My mother was saying that the enemies told my brother that they came to know that Awais has returned to Pakistan that’s why they attacked. The enemies said that whenever Awais returns to Pakistan, we will kill him. Because we have many informers in the village. My mother used to call me everyday that do not return to Pakistan because they have given threat that’s why don’t come to Pakistan because your life is precious for me. That’s why, I don’t want to go back to Pakistan because my life is in danger there.”

The above statement only explains why the Applicant did not appeal until after he received his mother’s warning on 24 March 2018.  In gist, he did not appeal because he wanted to return to Pakistan as his mother had told him that the situation at home improved; but he changed his mind when he received his mother’s warning of an attack by the brothers and their renewed threat to kill him on 24 March 2018. It did not address the question of what is wrong with the Notice which determined that he was not entitled to non-refoulement protection under any of the applicable grounds under the USM.  That may not be fatal because the appeal before the Board is a rehearing as this Court would rigorously examine the Notice for errors of law, procedural unfairness and irrationality.   

33.  In Section 5 of the NOA, the Applicant wrote:

“First I gave application to go back, my problem was finished. But I received call from my family on 24^th and my family told me not to come back because the enemies have come to know and they will kill me. That’s why I returned.”

This statement is a summary of the statement in Section 2.  It gives an explanation for his late application, but is lacking in sufficient particulars to enable the Board to assess its credibility and merits.  There is nothing the Board could find from reading the NOA that there are any special circumstances which would make it unjust not to allow the late filing. 

34.  Having rigorously examined the Decision, the Notice, the NOA, the papers and the evidence with anxious scrutiny, the Court was satisfied that the immigration officer had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness.  The immigration officer assessed the Applicant’s harm and risk on the basis of the case as asserted by him and the objective COI.  He found that there was no factual basis to support the Applicant’s claims for non-refoulement protection under any of the four applicable grounds. 

35.  Likewise, the Court was satisfied that the Board had correctly directed itself on the law and key legal principles relating to the late filing of NOA. The Board observed a very high standard of fairness.  It found that the Applicant had failed to provide sufficient information and documentary evidence to enable it to find whether there are any special circumstances which would make it unjust to refuse the late filing. 

36.  The decision of the Director in the Notice and the Decision of the Board are findings of fact which are exclusively within the province of the decision maker, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality.  The Court was satisfied that the Director and the Board made no error of law and committed no procedural unfairness in reaching the decisions.  These decisions did satisfy the enhanced Wednesbury test. They were not Wednesbury unreasonable or irrational.  The decisions were utterly without fault.  The Applicant has no arguable grounds for judicial review.  There is no realistic prospect of success in the proposed judicial review. 

Prejudice to the Applicant and proposed respondent; questions of general public importance

37.  As there is no realistic prospect of success in the proposed judicial review, the Applicant could suffer no prejudice if extension of time is refused.  The prejudice to the proposed respondent and to public administration if a challenge is allowed to proceed is obvious.  The delay is by itself an abuse of the process of the court and the non-refoulement protection arrangement.  To allow the challenge to proceed would encourage other claimants to indulge in such abuse.  It would cause unnecessary waste of judicial and public resources and delay the genuine non-refoulement claimants’ access to the court.  It would render it difficult for the Director to perform his duty of maintaining immigration control.  Above all, it would make it difficult or unduly burdensome for Hong Kong to honour its international obligations under the various conventions to protect people from persecution, torture and other cruel, inhuman or degrading treatment or punishment.  This application does not raise any questions of general public importance.  Allowing the application may subject the whole system of non-refoulement protection to serious abuse to the prejudice of Hong Kong.

Conclusion

38.  The Applicant’s delay was substantial and he offered no reasonable explanation for the late filing of NOA and the delay in applying for leave to apply for judicial review.  His intended judicial review has no prospect of success.  To allow him to proceed to challenge the Decision when there is no prospect of success is by itself an abuse of legal process and will occasion prejudice to the intended respondent. The proposed judicial review does not raise any question of general public importance.  Accordingly, leave to apply out of time will not be given and 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