KHAN SHAHZAD v. TORTURE CLAIMS APPEAL BOARD

HCAL 2687/2019

[2025] HKCFI 2160

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2687 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 the Applicant being absent in open court;

1.  Extension of time for the application for leave to apply for Judicial Review be granted;

2.  Leave for the Applicant to apply for Judicial Review of the decisions of Torture Claims Appeal Board dated 5 January 2017 and 5 July 2018 be granted;

3.  The Applicant do issue the Originating Summons within 14 days from the date hereof in accordance with Order 53, rule of the RHC (Cap 4A); and

4.  The Applicant do serve a copy of the Originating Summons together with all the relevant documents on the Torture Claims Appeal Board as respondent and the Director of Immigration as interested party.

Observations for the Applicant:

1.  The Applicant is a 40-year-old national of Pakistan who entered Hong Kong illegally on 28 March 2009 and was arrested by police on 4 April 2009, and for which he was subsequently convicted and sentenced to prison for 12 months. After he was discharged from prison and was referred to the Immigration Department for deportation, he raised a torture claim later taken as a non-refoulement claim for protection on the basis that if he returned to Pakistan he would be harmed or killed by certain local hooligans over their dispute arose from a cricket match in his home village. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Formulli Attock, Punjab, Pakistan. After leaving school he worked in his home village, and continued to reside with his parents in his family house.

3.  One day in September 2008, he together with his friends played a cricket match against another team composed of some local hooligans, and with whom they had a quarrel during the match which deteriorated into a fight when the Applicant was struck in the head with a cricket bat that he lost consciousness, and was subsequently taken to a local hospital for medical treatments to his head injury.

4.  After his discharge from the hospital, the Applicant continued to receive threatening messages from those local hooligans, and so on his parents’ advice he departed Pakistan on 18 March 2009 for China, and from there he later sneaked into Hong Kong, and upon his arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 1 December 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 4 February 2015 the Director of Immigration (“Director”) rejected the Applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“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 those local hooligans from his home village upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of them to seriously harm or kill him or of any further adverse interest in him after all these years since 2009 when he left the country, that in any event it was a private dispute between him and those local hooligans only without 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 187 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 areas of the country away from his home district in large cities such as Islamabad or Karachi where it would be difficult if not impossible for anyone to locate him.

7.  On 23 August 2016 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but as his Notice of Appeal was filed outside the 14-days period required by Section 37ZS (1) of the Immigration Ordinance, and in pursuance of Section 37ZT (2) of the Ordinance, the Board proceed to decide as a preliminary decision without a hearing whether to allow the late filing of the Notice of Appeal.

8.  By a decision dated 5 January 2017 the Board refused to allow the late filing of the Applicant’s Notice of Appeal upon finding that it was late by some 18 months, that such delay was very serious and substantial, that his explanation of not receiving the decision in the mail within time was not acceptable, and in following the 3^rd stage of the 3-stage enquiry laid down by the UK Court of Appeal in The Secretary of State for the Home Department v Begum (2016) ECWA Civ 122, 3 March 2016, the Board found that there were no special circumstances that might make it unjust not to allow the late filing of the Notice of Appeal, as the Adjudicator so stated as follows:

“18. Following the 3^rd stage referred to in Begum, I evaluated all the circumstances in this case and arrived at the conclusion that it is fair and just to refuse the Appellant’s application.

19. There were no other matters known to me or revealed by the factual basis of the Appellant’s claim, which might amount to special circumstances, and which might make it unjust not to allow the late filing of the Notice of Appeal.”

9.  Meanwhile on 11 August 2017 the Director on his own initiative invited the Applicant to submit additional facts that 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 the HKBOR including right to life under Article 2 (“BOR 2” and “BOR 2 Risk”), and in the absence of any response or reply from the Applicant, the Director by a Notice of Further Decision dated 29 August 2017 also rejected his BOR 2 Claim upon finding that the Applicant had failed to establish a personal and real risk of his absolute and non-derogable rights under the HKBOR including right to life under BOR 2 being violated upon his return to Pakistan.

10.  On 21 February 2018 the Applicant again lodged an appeal to the Board against the Director’s Further Decision, but again his Notice of Appeal was filed outside the required 14-days period under the Ordinance, and by a decision dated 5 July 2018 the Board again refused to allow its late filing upon finding that the Notice of Appeal was late by more than 5 months which was very serious and substantial, that the Applicant’s explanation of only receiving the decision late in the mail was not credible or acceptable, and that there were no other matters known to the Board which might amount to special circumstances that would make it unjust not to allow the late filing of the Notice of Appeal ([18] – [19] of the Decision).

11.  On 16 September 2019 the Applicant filed his Form 86 for leave to apply for judicial review not of this second decision of the Board but instead of the earlier first decision dated 5 January 2017, but no ground for seeking relief was given in his Form or his supporting affirmation of the same date to which he just attached a copy of that decision but without putting forth any proper ground for his intended challenge.

12.  By then the Applicant was however also out of time with his application, as 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 day when grounds for the application first arose unless the Court considers that there is good reason to extend the period within which the application shall be made.

13.  As the last day of the three-month period for him to file his Form 86 as regard the first decision of the Board fell on 5 April 2017, the Applicant was therefore more than 2 years late with his application, or for that matter as regard the second decision of the Board of 5 July 2018 that he would also have been late by almost one year, 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.

14.  In the Applicant’s case, a delay of more than 2 years as regard the first decision of the Board must be considered as extremely substantial and inordinate, for which the Applicant did not provide any explanation or reasons in his Form or affirmation, nor did he attend the subsequent hearing of his application as scheduled without any explanation, and as such I am unable to see any good or valid reason for his such serious delay.

15.  As for the merits, if any, of his intended application, as noted above the Applicant has also failed to put forward any proper ground for his intended challenge of either decisions of the Board. Nevertheless, given the fact that his non-refoulement claim had never been screened by the Board under any of the applicable grounds due to the Board’s refusal to allow the late filing of his appeals on both occasions, and given the seriousness of such implications that high standards of fairness would require the Court to adopt an enhanced standard in scrutinizing the Board’s reasons for both of its refusals.

16.  While I agree that the Board was correct to find on both occasions that the Applicant’s delays in the filing of his appeals were extremely substantial and inordinate, and that the Board was also entitled in the circumstances to reject his explanations, it seems to me that after having conducted the first two of the three-stage enquiry laid down in Begum as noted above, and as alluded to in both of its decisions ([14] - [18] of both Decisions), the Board did not appear to have taken account of the merits of the Applicant’s appeals in either of its decision as part of the relevant matters of fact within its knowledge under Section 37ZT (2)(b) of the Ordinance, and identified to be relevant by the Court of Appeal in Re Khan Kamal Ahmed [2019] HKCA 377, and in Re Qusim Ali [2019] HKCA 430, as elaborated by Lisa Wong J in the judgment for the Court in the latter case as follows:

“23. Further, as the last of the 3-stage enquiry alluded to in The Secretary of State for the Home Department v Begum, on which the Board had directed itself at [16] of the Board’s Decision, even where there is a serious or significant breach for which no good reason is given, the decision maker should move to evaluate all the circumstances of the case that he knows of.

24. In identifying what circumstances are relevant, it is imperative to bear in mind that the discretion to allow the late filing of a notice of appeal is exercisable when it would be “unjust” not to do so by reason of “special circumstances”: see s 37ZT(3) of the Ordinance.

25. It is in this connection that we cannot agree with the Board or the Judge that merits need not or should not be considered (see Board’s Decision at [21] and Call-1 Form at [37]). In our opinion, it would be unjust not to allow the late filing of a notice of appeal where the appeal is meritorious. Indeed, nothing would be more unjust.

26. The Board should have, under s 37ZT(2)(b) of the Ordinance, taken account of the merits of the appeal (albeit on paper without a hearing) regardless of the procedural breaches or the lack of explanation therefor. See Re Khan Kamal Ahmed, CACV 563/2018, [2019] HKCA 377, 2 April 2019, [16]-[20].

27. For these reasons, we are of the view that the intended application for the judicial review is reasonably arguable, meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.”

17.  Similarly in the present case, the Board in either of its decisions did not appear to have taken account of or considered the merits of the Applicant’s appeals at all, or for that matter his non-refoulement claim under any of the applicable grounds as set out in the Notices of Appeal as part of relevant matters of fact within its knowledge under Section 37ZT (2)(b) of the Ordinance, and if it had that the Board failed to make any findings thereof or give any explanations or reasons as to why they did not amount to any special circumstances that might make it unjust not to allow the late filing of either of the Applicant’s Notice of Appeals.

18.  For these reasons I am of the view that there are merits in the Applicant’s intended application, or that his intended application for judicial review of either decisions of the Board is reasonably arguable, thus meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

19.  In the premises, I extend time to the application and grant leave to the Applicant to apply for judicial review of both decisions of the Board on the bases as stated above, and accordingly direct that the Applicant shall file and issue the originating summons 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