Muhammad Yamin Butt v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1454/2023

[2023] HKCFI 2475

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1454 of 2023

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;

Order by Deputy High Court Judge To:

1.  Legal Aid stay is uplifted; and

2.  Leave to apply for Judicial Review refused.

Observations for the Applicant:

Introduction

1.This is the Applicant’s application by Form 86 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 31 July 2023 (the “Decision”) refusing his application for late filing of a Notice of Appeal/Petition (“NOA”). The Director of Immigration (the “Director”) is named as a proposed respondent, but no relief is sought in respect of any decisions made by the Director.

Legal aid stay

2.An oral hearing on 20 September 2023 was scheduled for the Applicant. Notice of hearing was sent to him on 14 September 2023. A Memorandum of Notification of an Application for Legal Aid dated 19 September 2023 was filed with the Court. In the normal course, his leave application shall be stayed until 30 October 2023. The Applicant also filed an application for the writ of habeas corpus in HCAL 1468/2023 which was scheduled to be heard on 29 September 2023.

3.The subject matter of this leave application is about late filing of NOA. The factual and legal issues raised by this application revolve around a very narrow compass. Having considered the nature of the leave application and issues raised, the Decision, the papers, and all the circumstances of his leave application, the Court reached a strong provisional view that the intended judicial review has no prospect of success. Subject to the question of legal aid stay under Section 15 and Regulation 7A of the Legal Aid Ordinance, it would be expedient and to the benefit of both parties to the habeas corpus proceedings to dispose of this leave application well before the habeas corpus proceedings. Thus, despite the legal aid stay, the Court proceeded with the hearing on 20 September 2023.

4.At the oral hearing, the relevant provisions of the Legal Aid Ordinance was explained to the Applicant and he was invited to advance his reasons why the legal stay should not be lifted. Other than that he wanted to stay the hearing pending the outcome of his legal aid application, he could advance no other reasons. For the reasons as explained in the above paragraph, despite Section 15 and Regulation 7A of the Legal Aid Ordinance, the Court ordered the proceedings to continue.

The background

5.The Applicant is a Pakistani national. He entered Hong Kong illegally on 15 September 2006. He was arrested on 5 March 2007 for remaining illegally in Hong Kong. He then made a torture claim under section 37U of the Immigration Ordinance (the “Torture Claim”). His claim was rejected by the Director by his Notice of Decision dated 22 March 2013 (the “2013 Notice”). He did not appeal. Thus, the decision in the 2013 Notice relating to his Torture Claim is final and binding on him.

6.He then filed a non-refoulement claim by written submission on 5 April 2013 and lodged a supplementary claim form (“SCF”) on 3 April 2018. His non-refoulement claim was assessed on the three remaining applicable grounds under the Unified Screening Mechanism (“USM”), namely: BOR 2 Risk[1]; BOR 3 Risk[2]; and Persecution Risk[3]. By his Notice of Decision dated 19 April 2018 (the “2018 Notice”) the Director rejected his claim. The 2018 Notice was delivered on the same day to the Duty Lawyer Service then representing him which the Duty Lawyer Service confirmed was served on him during a meeting between him and the assigned duty lawyer at Lai Chi Kok Reception Centre on 25 April 2018.

7.Almost five years later, on 31 March 2023, the secretariat of the Board received a NOA in respect of the 2018 Notice dated 12 January 2023 from the Applicant. His grounds of appeal are that the Director erred in finding: (1) that the risk he faced is not serious; and (2) that he could be afforded state protection. He reserved his right to rely on further grounds after seeking further legal advice.

8.The NOA was obviously filed out of time. That fact was accepted by the Applicant. In Section 5 of the NOA, he gave the following explanation for the late filing:

“As I was serving a sentence for a criminal matter and subsequently detained by the Director of Immigration, I was not in a position to arrange the necessary funds to seek legal advice. As soon as I was able to, I have sought the legal advice and submitted this form. I apologize for any inconvenience caused. Also the Director of Immigration has not suffered any prejudice as a result of the delayed filing.”

9.On 31 July 2023, the Board issued its Decision refusing the late filing. The Applicant now seeks leave to judicially review that Decision.

The relevant legal provisions relating to late filing of NOA

10.Under the non-refoulement protection regime, a claimant aggrieved by the decision of the Director may appeal that decision by filing a NOA with the Board within 14 days after the notice the decision has been given to him: Section 37ZS(1) of the Immigration Ordinance (the “Ordinance”) and Paragraph 8.1 of the Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme (the “Petition Guide”). Failing that, he may also make a late filing, pursuant to Section 37ZT(1) of the Ordinance, by giving a statement of the reasons for his failure accompanied by all available supporting evidence. For that purpose, Section 5 of the NOA form is designed as an application for late filing for the claimant to state the reasons for his failure when filing the NOA.

11.Section 37 ZT(2) of the Ordinance and Paragraph 9.2 of the Petition Guide mandate the Board to decide, as a preliminary decision without a hearing, whether to allow the late filing. The subsection also requires the Board to only take account of the statement of reasons stated in Section 5 of the NOA and the supporting evidence relied on. Under Section 37ZT(3) of the Ordinance and Paragraph 9.3 of the Petition Guide, the Board may allow the late filing if the claimant has provided sufficient evidence in writing to satisfy the Board that he had exercised all due diligence to file the NOA within time but failed because of circumstances beyond his control.

The finding of the Board

12.On the basis of the confirmation of the Duty Lawyer Service then representing the Applicant, the Board was satisfied that the 2018 Notice was served on the Applicant on the 25 April 2018. Accordingly, the 14-day period expired on 9 May 2018. The NOA was filed more than four years and ten months out of time. The Board then proceeded to consider the late filing in accordance with Section 37ZT(2) and (3) of the Ordinance and Paragraphs 9.2 and 9.3 of the Petition Guide.

13.In gist, the Applicant’s explanation for the late filing as stated in Section 5 of the NOA is that he was held in custody at the material time and was not in a position to arrange necessary funds for seeking legal advice but that as soon as he obtained the funds he filed the NOA. The Board considered his other ground that the Director was not prejudiced by the delay irrelevant.

14.The Board noted that in the last paragraph of the 2018 Notice the Director had clearly informed the Applicant that he had to lodge an appeal within 14 days if he was aggrieved by his decision in the notice. The Applicant knew he had to appeal within 14 days. He was legally represented by the Duty Lawyer Service then and was actually having a meeting with the assigned duty lawyer when he was served the 2018 Notice. The Board found he had access to a legal advisor when he received the 2018 Notice and all he needed in terms of advice was to file the NOA within 14 days. The Board considered his claim that he needed funds to obtain legal advice is not relevant in terms of the simple requirement to file the NOA within 14 days. Hence, it found that the Applicant had failed to provide sufficient evidence in writing to satisfy the Board that he had exercised all due diligence to file the NOA within time but failed to do so because of circumstances beyond his control. It therefore refused his application for late filing.

Legal principles applicable to judicial review

15.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 feasibility of internal relocation and in this case, circumstances relating to late filing of NOA. 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[4].

Grounds for judicial review

16.After the above principle and the reasons of the Decision were explained to the Applicant, he confirmed he was not aware of any error of law in the Decision and had no complaint about procedural unfairness or irrationality in the Decision.

17.He has not put forward any grounds of judicial review in his Form 86, but filed an affirmation containing a six-page statement, which in fact purports to be his grounds of application for judicial review. In the statement, he set out the background in the processing of his non-refoulement claim. In Paragraph 5 of the statement, he said he was informed by the duty lawyer that he had no grounds of appeal against the 2018 Notice and hence the Duty Lawyer Service would not represent him in his appeal. He was given a NOA form and informed that he had to proceed with the appeal by himself and file the NOA within fourteen days. This paragraph confirmed the correctness of the factual basis of the Board’s Decision.

18.He then went on to describe his predicament; that there was no one to assist him; that his mother tongue is Urdu and English is not his first language; that he had no legal assistance; that he could not understand the reasoning of the decision (presumably meaning the 2018 Notice); that the Decision of the Board was never read or interpreted to him; that he was deprived of the opportunity to make a full application for leave to apply for judicial review; he reserved his right to submit further evidence after the Decision had been read back to him; that all his various applications should be considered as one and hence his NOA should be considered as having been filed within time as his leave application is filed within time. He emphasized that he disagreed with the Decision and the Notice. He submitted that the high standard of fairness requires that if the applicant’s credibility is an issue, he should be allowed to attend the hearing, presumably complaining that an oral hearing should have been held in respect of his application for late filing.

Discussion and conclusion

19.The issue raised by this leave application is the propriety of the Board’s Decision refusing the Applicant’s late filing of the NOA, not the merits of his non-refoulement claim. Hence, almost the entirety of his statement which is directed at merits of his non-refoulement claim is irrelevant. Most importantly, as mentioned in Paragraph 13, the Applicant actually admitted having been provided legal advice by the Duty Lawyer Service and advised that he had to file his NOA within fourteen days. He was also given a NOA form for him to fill in and file by himself as the Duty Lawyer Service considered he had no grounds for appeal and would not continue to represent him. Thus, he knew the time limit to file the NOA. His statement confirmed the correctness of the factual basis of the Board’s Decision. The Board had directed its mind to the relevant provisions under the Immigration Ordinance relating to late filing of the NOA. It applied the law correctly to the facts it found and came to the conclusion that the Applicant had failed to satisfy the Board that he had exercised all due diligence to file the NOA within time but failed because of circumstances beyond his control.

20.The Applicant’s other grounds are directed at the merits of his non-refoulement claim which is not the issue raised by the Decision. They are wholly irrelevant. In gist, his complaint is about lack of legal representation and language assistance. He had legal assistance and language assistance up to the point when the 2018 Notice was served on him and explained to him. It is well established that the high standard of fairness does not require that a claimant must be provided with such assistance at all stages of the non-refoulement proceedings: see Zafar Muazam[5]. Even if some allowance should be given to him, an unexplained delay of four years and ten months in appealing the 2018 Notice is far beyond any indulgence which any court could allow him in the circumstances. It was his choice to come to Hong Kong where Urdu is not the official language and not commonly spoken. He cannot sit here waiting for language assistance to fall on him. He had to find his way to go about his appeal if he was serious about appealing, just as he finds his way to his everyday life in Hong Kong. The delay speaks volume of his lack of intention to prosecute his appeal. Besides, the issue raised by his leave application is not about merits or procedural unfairness associated with the process of his non-refoulement claim. As for his complaint that he had no language assistance to enable him to understand the Decision and to make a meaningful leave application, he has the benefit of this Court’s anxious scrutiny of the Decision.

21.Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles relating to late filing of NOA; correctly identified the issues raised by the late filing and observed a very high standard of fairness. The Board made its decision in accordance with Section 37ZT. Basically, the Decision is one of finding of fact, which is solely within the province of the Board which the court in a judicial review will not interfere save for errors of law, procedural unfairness and irrationality. The Applicant’s statement confirmed the correctness of the factual basis of the Board’s Decision. This Court could not detect any error of law in the Decision or procedural unfairness at any stage of the proceedings. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success. For the above reasons, leave to apply for judicial review is refused.

Dated 26^th day of September 2023.

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