Naveed Muhammad v. Director of Immigration

HCAL 209/2017

[2018] HKCFI 224

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 209 of 2017

BETWEEN

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The applicant is a 28-year old Pakistani male who entered Hong Kong illegally from Shenzhen and was arrested by police on 13 October 2013.  He was then referred to the Immigration Department where he on 16 October 2013 lodged his claim for non-refoulement protection for fear of being harmed or killed by 3 cousins of his if he were to return to Pakistan after refusing to sell his family land to them.

2.His case is that he was born and raised in a village in Tehsil Jaran Wala, Faisalabad, Punjab, Pakistan where he lived with his parents and worked in his father’s farmland after completing his education.  He also has five siblings with two of them also living in Pakistan.

3.Towards the end of 2012 his father intended to transfer the farmland to him, but when his three cousins who also live in the same village and always coveted it for its high commercial value heard about it, they demanded that he sell them the land and when he refused, they started to threaten him and eventually assaulted him by punching and kicking him resulting in him being admitted into hospital for treatment to bruises and bleeding.

4.Several days after the assault the village head called for a meeting between the applicant’s family and the cousins but to no avail, and several months afterwards while the applicant and his father were working in the farmland, they were assaulted by the three cousins again and this time his father also sustained injuries, for which they reported the matter to the police but nothing was done to their satisfaction.

5.Eventually one day in June 2013 the applicant was fiercely attacked by some unknown men on motorcycles that he suffered a fracture to his left ankle and lost consciousness.  He was subsequently admitted to the hospital when he was treated and kept for one day before being discharged.  Later when he learnt that those men were sent by his cousins, his father advised that he must leave Pakistan for his safety, and thereafter arranged for him to fly to Guangzhou on 3 October 2013 where he stayed in a guest house until 13 October 2013 when he entered Hong Kong illegally.          

6.By a Notice of Decision dated 2 November 2015 the Director of Immigration rejected the applicant’s claim on all available grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Claim”), risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the Hong Kong Bill of Rights (“HKBOR”) Ordinance, Cap 383 (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principles under Article 33 of the 1951 Convention relating to the Status of Refugees (“Persecution Risk”).

7.In his decision the Director noted the applicant’s indicated intention to produce various documentary evidence in support of his case including statements of his father and the village head, medical reports of his injuries and land title documents of his farmland but despite more than three months had lapsed and with the assistance of legal representation under the Duty Lawyer Scheme, the applicant never produced any of those documents in support of his case which was then just based on his bare assertion.

8.Nevertheless the Director proceeded with his assessment of the applicant’s claim on all applicable grounds, and on finding no substantial grounds to believe that the cousins would kill him or that his fear was real and foreseeable, and that in any event it was a private dispute without any evidence of either the State or the government being involved, the Director arrived at the determination based on objective COI that internal relocation was available and reasonable to the applicant in his circumstances for him to live and work safely upon his return to Pakistan in districts or cities away from his home area, and therefore rejected his claim.       

9.On 13 November 2015 the applicant filed his appeal to the Torture Claims Appeal Board (“the Board”).  By a letter dated 15 September 2016 the Director invited the applicant to submit any additional facts which he may consider relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute and non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 Risk”), and in the absence of additional information from him the Director again rejected his claim on 3 November 2016.

10.Meanwhile the Board conducted an oral hearing on 30 November 2016 during which the applicant attended in person to give evidence and answer questions, and having found that there was no substantial risk or basis of his fear, that the dispute was of private nature with no evidence of State of official acquiescence or extended acquiescence by police, and that his evidence was unreliable, the Board determined that his claim had failed on all applicable grounds and agreed that it would be safe for him to return to live and work in Pakistan at least other than his home area, and on 6 February 2017 it dismissed his appeal and confirmed the Director’s decisions.

11.On 15 May 2017 the applicant filed his Form 86 for leave to apply for judicial review of those decisions of the Director and the Board.  He knew he was then out of time by a little more than a week and he explained in his affirmation of the same date that right after receiving the Board’s decision by post on 10 February 2017, he immediately applied for legal aid for the present leave application for judicial review, but was rejected only a week ago and so he was in a hurry to prepare and file his intended application in person and hence the slight delay.

12.The proper approach in considering an application for leave to apply for judicial review brought out of time was held by the Court of Appeal to be no different where the requirement of anxious scrutiny in cases involving fundamental rights or where life and limb may be put at risk, as in cases involving claims for humanitarian protection such as the one before me, it does not change the general approach of the court in deciding whether extension of time should be granted; however, what constituted a good reason for extending time is a multi-faceted question and it has to be considered in light of the facts and circumstances of the case, and while the seriousness of the potential consequences is part of the factual matrix which the court must take into account in applying the flexible test, and possibly the seriousness of the potential consequences for an applicant should affect the standard of scrutiny in the court’s assessment on the merits of the substantive application and the balancing exercise in considering potential prejudice, and though the intensity of scrutiny may be different, the underlying approach is still the same, as per Lam VP in AW v Director of Immigration & William Lam, CACV 63/2015, 3 November 2015.

13.Here the Board’s decision was dated 6 February 2017, hence the three months under Order 53, rule 4(1) of the Rules of the High Court, Cap 4A and section 21K(6) of the High Court Ordinance, Cap 4 within which the applicant was to apply for leave for judicial review expired on 6 May 2017.  The applicant claimed in his affirmation that he only received the decision in the post on 10 February 2017, and as he needed legal assistance in his application for judicial review, he therefore applied for Legal Aid on 16 February 2017 and for which he produced his legal aid reference as LA/M JR 15570/2017 (DC22), but which he claimed was refused about a week before his affirmation of 15 May 2017 which would put it at or about 8 May 2017, just two days after the expiration of the three month period for making the application for judicial review, which therefore means that he would be out of time by some nine days when he filed his present application on 15 May 2017.  Henceforth has there been “undue delay” in the applicant’s application that extension of time should in the circumstances not be granted?

14.The legal principle to extend time as stipulated by Order, 53 rule 4(1) is 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 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.”

15.Whereas section 21K(6) provides that:

“ 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.” 

16.Firstly, what does “undue delay” entail under these two provisions?  Kwan JA in delivering the judgment of the Court of Appeal in AW, supra, explained in para 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”

17.Her Ladyship then went on to endorse the principles stated by G Lam J in Re Thomas Lai [2014] 6 HKC 1 which she helpfully summarized in para 27 of the judgment as follows:

“ (1) While in the public law field, it is essential that the courts should scrutinize 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 ER 1033 at 1046, per Woolf LJ).

(2) However, it must also be borne in mind that unless a disciplined approach to application 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.”

18.In approving the principles and approach stated in Re Thomas Lai, Her Ladyship confirmed that while that case related to application for extension of time for judicial review in general, they are no less applicable to cases involving claims for humanitarian protection, that there is no need to create a special category for these cases with principles that are to apply peculiarly to them, as the principles governing the exercise of discretion to extend time for judicial review are well established and are meant to be applied flexibly, always with regard to the particular circumstances of each case, and that:

“ It would not be right to lay down a rigid approach that in cases involving fundamental human rights, the scales must necessarily be tipped in favour of extending time, regardless of the weight to be attached to any relevant factor as may be appropriate in a particular situation. A good illustration is the cases of BH v Director of Immigration and TH v Director of Immigration mentioned earlier, in which Chow J arrived at different results on extension of time for judicial review in which the same legal issue was raised to challenge a decision to refuse a dependent visa.”

19.In both BH v Director of Immigration (HCAL 105/2014, 14 April 2015) and TH v Director of Immigration (HCAL 114/2014, 20 July 2015) referred therein, Chow J found very substantial delay of 16 and 17 months respectively, with a substantial part attributable to the time in seeking and obtaining legal aid, and while the mere fact that legal aid or pro bono assistance is not available is generally not regarded as a sufficient basis for an extension of time but is only one of the factors that the court would consider whether there are good reasons to justify an extension of time notwithstanding the delay: see Fung Elvira Binag v The Secretary for Home Affairs, HCAL 139/2013 (10 March 2014) at paras 27 and 29 per Au J; Mui Mei Fung v Secretary for Justice for Commissioner for Labour, HCAL 145/2013 (16 January 2014) at para 29 per Au J; and Re Thomas Lai, supra at para 48(2) per G Lam J.  As pointed out by Kwan JA above, Chow J granted extension of time in one but not the other for the different reasons set out in his judgments.        

20.In the present case the delay pales by comparison for slightly more than one week, and while the applicant has not produced any evidence in support of his delay, he did apply for Legal Aid on 16 February 2017, I therefore do not see any basis to doubt his explanation, and taking into account of the circumstances he found himself in at that time, I accept that he did promptly get on with his application in person once his legal aid application had been refused.  Given that very short delay, I do not think that the Director would in any way be prejudiced or that it would be detrimental to good administration.  Accordingly and in the exercise of my discretion, I allow the applicant to proceed with his leave application for judicial review out of time. 

21.In his supporting affirmation with a one-page exhibit where the applicant set out his grounds for challenging the decisions of the Director and the Board, of which I can essentially summarize as follows:

(a) that he never received the letter from the Immigration Department inviting him to submit additional facts relevant to his non-refoulement claim under BOR 2 Risk including his right to life so that he has been deprived of the opportunity to do so; and

(b) that there are errors in law when decision maker just relied on COI to make biased decision to reject his claim.  

22.I am however unable to find any details or particulars provided by the applicant in respect of either of the grounds in his affirmation, such as what additional facts or materials that he would want to submit or would have been able to submit had he indeed received the letter from the Immigration Department inviting him to do so, or what error in law or procedural unfairness that the Director or the Board may have committed in their determination based on objective COI that internal relocation would be available and reasonable in his circumstances to return to Pakistan, as it is clearly for him to prove his case and accordingly bear the burden to provide details or specifics, which he has not, to show what error in law or procedural unfairness are said to have been committed by either decision maker, and having rigorously examined and anxiously scrutinized the detailed assessments and analysis in the decisions of both the Director and the Board, I am satisfied that both have taken into account all relevant considerations in their determination that internal relocation would be available and reasonable for the applicant to return to Pakistan, and given both their findings that the risk of persecution or torture as alleged by the applicant is a localized one and that it is not unreasonable or unsafe for him to relocate to another part of Pakistan, I am unable to see any basis in the applicant’s challenge of either decisions.

23.In the premises I do not see any ground of the applicant which shows any error in law or procedural unfairness on the part of either the Director or the Board, or any failure on their part to apply a high standard of fairness in their assessment of the applicant’s claim.  I am therefore not satisfied that his intended application for judicial review is reasonably arguable, and accordingly I refuse his leave application.

Dated the 2nd day of February 2018.

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