Mehmood Faisal v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 2305/2018

[2021] HKCFI 65

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 2305 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 submission by the Applicant in open court.

Order by Deputy High Court Judge C P Pang:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.This is an application for leave to apply for judicial review against the decision of the Torture Claims Appeal Board/ Non‑refoulement Claims Petition Office (“the Board”) dated 7 May 2018 refusing to allow late filing of appeal/ petition against the decision of the Director of Immigration (“the Director”) refusing the applicant’s claim of non-refoulement protection.

2.The applicant, born in 1984, is a national of Pakistan.  He arrived in Hong Kong on 28 February 2006 and was permitted to remain until 14 March 2006 as a visitor.  His permission to stay was last extended until 8 April 2006.  He overstayed and remained in Hong Kong unlawfully.  On 5 August 2007, he was arrested by the police and referred to the Immigration Department for investigation.  By a written representation dated 18 August 2008, he lodged a non-refoulement claim.

3.Put simply, the claim was based on the fear that, if refouled, the applicant would be harmed or even killed by a man named Irfan who believed that his brother was killed by Naveed, cousin of the applicant.  Irfan’s brother was killed in 2005.  As Naveed was very close to the applicant, the applicant was kidnapped by people of Irfan to a dera near Irfan’s home.  Irfan threatened that if he did not tell Neveed’s whereabouts, Irfan would kill him.  Irfan also accused him of being involved in the killing of his brother.  The applicant was tied up and assaulted by them before he was released.

The Director’s decisions

4.By notices of decision dated 28 August 2014 and 10 November 2016 respectively, the Director rejected the applicant’s non-refoulement claim on all applicable grounds for reason that the claim was not substantiated.  The first decision covered torture risk^[1], BOR 3 risk^[2], and persecution risk^[3]. The second decision covered BOR 2 risk^[4].  Having taken into account all relevant circumstances, the Director assessed the level of risk of harm as low.  He found that state protection is available to the applicant and internal relocation is a viable option for him.  The applicant lodged an appeal/ petition to the Board against the Director’s decisions.

The Board’s decisions

5.The applicant attended a hearing before the Board on 5 February 2015 for his appeal against the first decision of the Director.

6.By a decision dated 26 August 2015 (first decision of the Board), the Board rejected the appeal/ petition confirming the Director’s first decision.  The Board’s first decision covered the BOR 3 risk, the persecution risk, and the torture risk.  In a nutshell, the Adjudicator of the Board found that there are a lot of contradictory and inconsistent statements which render the applicant’s evidence unreliable.  Moreover, in any event, state protection is available to him and internal relocation is a viable option for the applicant.

7.By a decision dated 7 May 2018 (second decision of the Board), the Board refused to allow late filing of the petition against the second decision of the Director as the filing of the notice of petition was 2 months and 21 days late after the deadline.  In Section 5 of the notice of petition, the applicant only stated “I lost my Notice of Decision and Appeal Form. Now I get new copy from Immigration.”  The Board found that it was just a bare statement without details.  There was inordinate delay.  The applicant had not stated any cogent reason for the delay, nor did he show any reason of special circumstances that it would be unjust not to allow the late filing of the notice of petition.  For these reasons, the Board refused the application for late filing of the notice of petition.

Application for leave to apply for judicial review

8.The applicant filed a Form 86 on 23 October 2018 for leave to apply for judicial review of the decision of the Board dated “7/05/2018”, referring to the second decision of the Board refusing the late filing of notice of appeal/ petition.

9.No request for oral hearing has been made.  The application is therefore considered on the papers.

10.In the Form 86 and supporting affirmation, the applicant did not set out any grounds for the relief sought.

11.In his affirmation, he said he is not happy with the decision of the Board and that his life is still in danger in his home country.

Discussion

12.The relevant principles regarding non-refoulement claims have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at paragraph 14.  In particular, the role of the court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  While the court in non-refoulement cases will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board.  Assessment of evidence, country of origin information, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director.  The court will not intervene by way of judicial review unless there are errors of law, procedural unfairness or irrationality in the decision of the Board.

13.When the applicant pursued the appeal to the Board, the Director’s decisions were superseded by the Board’s decisions and are no longer susceptible to judicial review: Re Moshsin Ali [2018] HKCA 549. Therefore, this decision will only focus on discussing the Board’s decisions.

Application out of time

14.It must be pointed out first that the applicant’s intended application for judicial review was made out of time.  Order 53, rule 4(1) of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review 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.  In considering whether to extend time, the court will have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: Re Thomas Lai [2014] 6 HKC 1; AW v Director of Immigration [2016] 2 HKC 393.

15.The principles have been further explained by the Court of Final Appeal in the recent case of H v Director of Immigration and AH v Director of Immigration FACV 1 and 2 of 2020, at para 37.

16.In this case, even counting only from the 3-month time limit which ended on 7 August 2018, the application was late by 2 ½ months. The delay was substantial.  The applicant did not request extension of time or give explanation for the delay.  I cannot find any good reason for the undue delay.

Merits of the intended application

17.Nevertheless, I will also consider the merits of the intended judicial review.  Far from a case with realistic prospect of success, I am of the view that the applicant has no prospect of success at all.

18.Section 37ZT of the Immigration Ordinance relevantly provides for the followings in relation to late filing of appeal/ petition:

(1)   the applicant to provide information in support of the application for leave to file late, which must include:

(a)   a statement of the reasons for failing to file the notice within the 14-day period; and

(b)   any documentary evidence relied on in support of such reasons;

(2)   matters which the Board may take into account in considering whether to allow late filing are confined to:

(a)   reasons stated for the late filing, and supporting documentary evidence filed; and

(b)   any other relevant matters of fact within the knowledge of the Board; and

(3)   if the Board is satisfied that by reason of special circumstances it would be unjust not to allow the late filing, the Board may allow the late filing.

19.The Notice of Appeal/ Petition filed with the Board in respect of the second decision of the Board was almost 3 months late.  I agree with the Board that the delay was inordinate and the applicant only gave a bare statement without details when, how and where he lost the decision of the Director and the appeal form.  Even if it was true, it was not a valid reason to explain the substantial delay.

20.The Court of Appeal held in Re Qasim Ali [2019] HKCA 430, 8 April 2019 that regardless of the procedural breaches or the lack of explanation therefor, the Board should take account of the merits of the appeal in its determination of whether there are special circumstances that would make it unjust not to allow the late filing of the Notice of Appeal.

21.The presiding Adjudicator of the Board in its second decision was also the Adjudicator in its first decision.  He had had the benefit of considering the merits of the applicant’s claim in the first decision of the Board.  He found the evidence of the applicant unreliable.  In any event, there is reasonable state protection and internal relocation a viable option.

22.As explained above, the assessments of evidence, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director.  This court will not interfere with their decisions unless there is a public law ground for the court to do so.

23.The applicant stated no grounds of the judicial review in Form 86. He mentioned nothing in the form or in the affirmation to suggest how the Board erred in the public law sense.  Nor was there a challenge with regard to procedural regularity and fairness.

24.In the absence of any error of law or procedural unfairness being shown by the applicant, I do not find any reasonably arguable basis to challenge the findings in both decisions of the Board.

25.Further, even if one gives the claimed account of events the most favourable interpretation, the alleged past ill-treatment or experience were of low intensity and frequency demonstrating at the most a remote and unreal risk of future harm.  There was no valid reason why Irfan would target the applicant and still wish to pursue the applicant after so many years.

26.The evidence can hardly establish that the applicant would be at real risk of being subjected to any type of ill-treatment or proscribed harm, if refouled.

27.Having considered the decisions of the Board with rigorous examination and anxious scrutiny, I do not find any error of law, irrational findings, or procedural unfairness in either of them.  Nor do I see any failure to apply high standards of fairness in the decisions.

28.For the reasons given, there is no prospect of success in the applicant’s intended application for judicial review.

Disposition

29.In the absence of good reason for extending the period to make the application, I refuse extension of time to apply.  Accordingly, leave to apply for judicial review is refused.

Dated 19 January 2021

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