RASHEED KASHIF v. TORTURE CLAIMS APPEAL BOARD

HCAL 987/2018

[2021] HKCFI 938

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 987 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 (counsel for) the Applicant in open court / the Applicant being absent in open court;

1.  extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 24 February 2017 granted; and

2.  leave to apply for Judicial Review granted.

Observations for the Applicant:

1.  The Applicant is a 32-year-old national of Pakistan who entered Hong Kong illegally on 26 August 2009 and was arrested by police on the same day. After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed by a local wealthy landlord with political connections over some personal dispute during a wedding banquet. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Mahalla Roriyan, Jalalpur Jattan, Gujrat, Punjab, Pakistan. After leaving school he remained living with his parents in his home village and worked as a part-time waiter for a local catering company.

3.  One day in March 2009 while he was working in a wedding banquet thrown by a wealthy local landlord Gujjar who was a senior member of the political party Pakistan Muslim League (N) (“PML(N)”), a dispute arose between them which led to a scuffle during which the Applicant was stabbed in his chest by Gujjar but he managed to escape from the scene to seek medical treatment, but as he was fearful of any further attacks from Gujjar, he fled to Lahore where he remained for several months without further incidents.

4.  However, later when he heard from his parents that Gujjar had sent armed men to look for him in his home, he felt it was no longer safe to remain in Pakistan, and so on 22 August 2009 he departed for China, and from there he later sneaked into Hong Kong, and upon his arrest by the police, he raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 4 November 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

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

6.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from Gujjar and his men upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from them, that after all these years it is doubtful that Gujjar would still have any adverse interest in him over such a minor dispute happened years ago, that in the absence of any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Pakistan with a large population of 196 million people spread across a vast territory of more than 796,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other part of Pakistan away from his home district in large cities such as Islamabad where it would be difficult if not impossible for Gujjar to locate him.

7.  On 21 May 2015 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which the Board scheduled an oral hearing on 17 August 2016 but which the Applicant failed to attend without any explanation, and the Board proceeded to deal with his appeal in his absence and on paper. On 24 February 2017 his appeal was dismissed by the Board. 

8.  On 28 February 2017 the Director on his own initiative invited the Applicant to submit additional facts which may be relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 Risk”), and in the absence of any response from him, the Director by a Notice of Further Decision dated 22 March 2017 rejected his claim under BOR 2 Risk.

9.  The Applicant did not lodge any appeal against that Further Decision of the Director, and instead on 1 June 2018 he filed a Form 86 for leave to apply for judicial review of the Board’s decision of which he dated 24 February 2018, but upon the Board’s subsequent confirmation that the only decision made by the Board regarding the Applicant’s claim is the one dated 24 February 2017 as noted above, and which I shall treat as the one that the Applicant now seeks leave to apply for judicial review, but for which he did not put forward any proper ground for his intended challenge in his Form, and in his supporting affirmation he merely repeated his claim that he cannot go back to his home country and that he wants to stay in Hong Kong until his problem is solved. Nor did he request any oral hearing for his application.

10.  By then the Applicant was also out of time with his application, as Order 53 rule 4(1) of the High Court Ordinance, Cap 4 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.

11.  As the last day of the three-month period for him to file his Form 86 fell on 24 May 2017, the Applicant was therefore more than 1 year late with his application, and in considering whether to extend time, the court shall 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: AW v Director of Immigration [2016] 2 HKC 393.

12.  In the Applicant’s case, a delay of more than 1 year must be considered as very substantial and excessive, for which he did not provide any explanation. As such I am unable to see any valid reason for his delay.

13.  As for the merits, if any, of his intended application, as noted above the Applicant has failed to put forward any proper grounds for his intended challenge. Nevertheless, given the interest at stake and the potential consequences of the decision, the court will adopt an enhanced standard in scrutinizing in particularly its reasons for dismissing the appeal.

14.  In its decision the Board gave the following reasons:

“27. It is incumbent upon the Petitioner to satisfy the Board that there is a real risk or chance, or that there are substantial grounds for believing, that he would suffer the harm he claims to fear if he were to return to Pakistan.

28. The Petitioner has described his situation in the information supplied to the Department.

29. However, in view of his failure to attend the Hearing, the Board is unable to determine the credibility of his assertions. In the absence of oral evidence from him, the Board is unable to determine whether there is a real risk or there are substantial grounds for believing that he would suffer the harm he claims to fear were he to return to Pakistan.

30. The appeal/petition is accordingly dismissed.”

15.  It is noted, firstly, that in dismissing the appeal, the Board did not however confirm the Director’s decision, as it is so required by section 23 of Schedule 1A of the Ordinance:

“23. Appeal Board’s Decision

     (1)  On an appeal against a decision referred to in section 37ZR, the Appeal Board may confirm or reverse the decision.

     (2)  On an application for a revocation decision under section 37ZM, the Appeal Board may allow or refuse the application.

     (3)  The Appeal Board must give its decision with reasons in writing.

     (4)  The Appeal Board’s decision is final.”

16.  In the Board’s decision, as the Adjudicator clearly did not reverse the Director’s decision, the Board should have proceeded to confirm it but somehow failed to do so.    

17.  More significantly, the Board decided the appeal against the Applicant because it was unable to determine his credibility due to his failure to attend the hearing, but it is clear that it did have had all the other evidence, materials and information earlier provided by the Applicant to the Director in support of his claim including his NCF and screening interviews as well as the Director’s findings in his decision, all in the hearing bundle supplied for his appeal before the Board, and which the Board did refer to in its decision and which would have allowed it to make the necessary findings and determination of the Applicant’s claim on the applicable grounds despite the absence of any oral evidence from him at the appeal hearing, as it is provided in section 12 of Schedule 1A that the Board may determine an appeal without a hearing if having regard to the materials before it and the nature of the issues raised that it is satisfied that the appeal can be justly determined without a hearing.

18.  Similarly, in section 15 of the Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme (“Petition Guide”), it is provided that:

“In determining whether a claim is and hence non-refoulement protection is to be granted to the petitioner, the Adjudicator must, having regard to the individual circumstances of each case, take into account all relevant considerations, including relevant country information and whether there is any region within the Risk State(s) in which the petitioner would not be subjected to a risk under any applicable grounds …”

19.  And in the case of Re Hidayah [2018] HKCA 595 CACV 160/208, 14 September 2018, where the Board also failed to make its determination as to the credibility of the claim of the applicant due to her failure to attend the hearing, the Court of Appeal held that the Board was wrong to dismiss the appeal without making any determination of her claim on the basis of the materials available before it, and that for which it failed to give any or sufficient reasons for its decision, as Chu JA in giving judgment for the Court stated:

“15. The Board decided the appeal against the applicant because it was unable to determine her credibility due to her failure to attend the hearing, and, in the absence of oral evidence, it was unable to determine whether there was a real risk or there were substantial grounds for believing that the applicant would suffer the harm she claimed to fear if she were to return to Indonesia. This is notwithstanding the Board had, in considering the appeal, taken into account the materials in the hearing bundle supplied by the Director (see [10] of the Board’s decision). There was no elaboration on why the Board’s inability to determine the credibility of the claim and whether the claimed fear of harm was well-founded should lead to a dismissal of the appeal. As we understand the Board’s reasons, it had not made any finding, and there was no adverse finding, on the credibility of the applicant’s case or on whether there was a basis for the claimed fear of harm. Although an applicant bears the burden of satisfying the Board that the claimed fear and risk is well-founded, if no adverse finding of credibility could be made on an applicant’s case, the Board would have to proceed to analyse and assess his claim against all applicable grounds on the basis that his case is plausible.

16. We are of the view that the applicant’s complaint that the Board had failed to give, or had given insufficient, reasons for dismissing her appeal against the Director’s decisions is an arguable ground, and that leave to apply for judicial review should be given on this ground.” 

20.  In the present case, the Board similarly dismissed the Applicant’s appeal because it was unable to determine the credibility of his claim due to his failure to attend the hearing but without taking into consideration of the materials in the hearing bundle for the appeal before the Board, and in doing so it did not give any or sufficient reasons for its decision.

21.  As such and in the premises, it is in my judgment reasonably arguable that the Board failed to discharge its obligation of procedural fairness in its administrative role in the second-tier of the enhanced screening process of the Applicant’s non-refoulement claim, thus meeting the threshold for leave to be granted for judicial review of the Board’s decision as laid down by Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.  

22.  Accordingly, and for the reasons given, notwithstanding the Applicant’s significant delay or lack of explanation therefor, I extend time for his application and grant leave to him to apply for judicial review of the Board’s decision on the basis as stated above, and direct that he shall issue an originating summons under Order 53 rule 5 of the Rules of the High Court, Cap 4A within 14 days of this decision, and to serve a copy thereof together with all the relevant documents on the Board as respondent and the Director as interested party.

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