HUSSAIN MURID v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2232/2018

[2022] HKCFI 1174

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No.2232 of 2018

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;     or
	consideration of documents and Applicant being absent in open court;

1.      Leave to apply for Judicial Review against the Board’s Second Decision be granted; and

2.      The applicant shall take out the originating summons within 14 days after this Order for his application in accordance with Order 53, rule 5(5) of the RHC.

Observations for the Applicant:

THE APPLICATION

1.  This is the applicant’s application for leave to apply for judicial review of the Decision dated 30 August 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office. However, according to the record, the date of the Board’s Decision which refused to extend time for the applicant to file the notice of appeal on the BOR2 risk should be 24 August 2018 (the “Board’s Second Decision”). I shall treat it as an error, which will be rectified upon the Court’s own motion below.

2.  The applicant did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), I shall deal with his application on paper.

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the Board is the proposed respondent, the Director of Immigration (the “Director”) is the interested party and the Decision of the Board is dated 24 August 2018.

The applicant

4.  The applicant is a national of Pakistan.  He entered Hong Kong illegally on 6 March 2010.  The next day, he was arrested by the Hong Kong police.  On 9 March 2010, he lodged a torture claim which was later taken as a non-refoulement claim.  His claim was made on the basis that, if refouled, he would be harmed or killed by his paternal cousin Ghulam Mustafa (“Ghulam”) and the Pakistan police.

5.  According to the applicant, his cousin Ghulam was rich, influential and well-connected with the authorities through his political affiliation.  In the winter of 2007, the applicant bought a land annexed to that of Ghulam, and the land deed, as claimed by the applicant, was lost after his dispute with Ghulam.  Ghulam wanted to forcibly occupy the applicant’s land.  One day, while the applicant was building the boundary on the land, Ghulam attacked him with sticks and he lost consciousness.  He had cuts, wounds and internal injuries due to the attack.  Nevertheless, the police refused to investigate the applicant’s complaint.  Thereafter, the applicant fled to other cities. 

6.  In the summer of 2008, the applicant claimed to be found and attacked by Ghulam and two men.  His left forearm was fractured and had a bump on his head.  Later, the applicant decided to end the dispute by offering his land to Ghulam.  However, upon seeing Ghulam’s construction on his land, the applicant was agitated and shot Ghulam’s car.  He was arrested and detained in the police station for attempting to murder Ghulam.  He was assaulted by the police officer.  After he was released on bail, the applicant went to Lahore.  In December 2009, he was attacked by 10 to 12 men in his shop with sticks and a knife.  When he managed to escape, he eventually fled to Hong Kong for protection.  Details of his claim were set out at paragraph 6 of the Notice of Decision dated 23 July 2014 by the Director (“the Director’s First Decision”) described below. 

The Director’s Decisions

7.  The Director considered the applicant’s claim in relation to the following risks:

(1)   risk of torture under Part VII C of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

(2)   risk of violation of the right of life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (“BOR 2 risk”);

(3)   risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of the HKBOR (“BOR 3 risk”); and

(4)   risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

8.  By way of the Director’s First Decision, the Director refused the applicant’s claim on the grounds of Torture risk, BOR3 risk and Persecution risk.  The Director found that the level of risk of harm from Ghulam was assessed to be low because (i) the applicant’s claimed fear originated from a private land dispute and the low intensity and frequency of the past ill-treatments indicated an unlikelihood of future risk of harm [11]-[12]; (ii) state protection was available to the applicant [13]-[14]; and (iii) internal relocation was also an option [15]-[19].  In the Notice of Further Decision dated 28 March 2017, the Director set out the reasons for rejecting the applicant’s claim on BOR2 risk (“the Director’s Second Decision”) for the reason that there was no evidence to show that the applicant’s right to life under BOR2 would be violated upon his return.

The Board’s Decisions

9.  The applicant first sought to appeal the Director’s First Decision. Under the statutory time-limit, the applicant ought to file his notice of appeal/petition within 14 days of the Director’s First Decision, i.e., by 7 August 2014.  Nevertheless, he only wrote to the Board on 19 May 2016 and 26 May 2016 requesting the “appeal forms” to be sent to him in the Castle Peak Bay Immigration Centre.  On 1 June 2016, the applicant filed the notice of appeal/petition and was therefore 1 year and 10 months out of time [3]-[7]. 

10.  The Board proceeded to consider whether to allow the applicant’s late filing pursuant to section 37ZT of the Ordinance.  In the notice of appeal/petition, the applicant requested more time to adduce evidence in support of his appeal [13].  His stated reasons of delay were that (i) he went into hiding as his enemies reached in Hong Kong; and (ii) he was approached by the Hong Kong police [14].  He also added an additional information that his father was killed on the spot by his enemies [15].

11.  The Board considered the delay serious and significant [21].  Having considered the other relevant matters of fact, the Board found that the Director’s First Decision was served on the applicant on time [27].  It rejected the applicant’s explanations as the applicant did not provide any details to support the aforesaid explanations [30]-[33].  As a result, by a decision dated 15 June 2016, the Board refused to accept his explanations and disallowed his request for late filing of the notice of appeal/petition against the Director’s First Decision (“the Board’s First Decision”).

12.  On 24 May 2018 and 8 June 2018, the applicant filed two sets of notice of appeal/petition against the Director’s Second Decision.  As mentioned earlier, the applicant ought to file the notice of appeal/petition on or before 13 April 2017 and thus he was again more than one year out of time.

13.  The Board proceeded to decide whether to allow the applicant’s late filing against the Director’s Second Decision.  The Board found that the applicant’s delay was serious and significant [17].  In both sets of the notice of appeal/petition, the applicant explained that the delay was due to his change of address and his mental disturbance [18]-[19]. 

14.  The Board considered that (i) the applicant was aware that the Director was assessing his claim under BOR2 risk and a decision would be made and communicated to him, and (ii) he was obliged to update the Immigration Department with his new address so that any correspondence would be received timely [20]. 

15.  Further, in assessing whether there were circumstances which would tilt in favor of the applicant, the Board found that the applicant failed to provide any details of his change of address or his mental disturbance.  In light of the unsatisfactory explanations for the delay, the Board, by its Second Decision refused to allow the applicant’s late filing of the notice of appeal/petition against the Director’s Second Decision.

Application for leave to apply for judicial review

16.  The applicant filed Form 86 on 12 October 2018 for leave to apply for judicial review of the Board’s Decision.

17.  In his affirmation in support of his application, he said, “My life is still dangerous in my country. So I am not fine in my country Pakistan. I want to stay in Hong Kong…”

DISCUSSION

18.  The issue for this Court is whether the Board’s Second Decision of refusing to extend time for the applicant to file his notices of appeal in respect of the Director’s Decisions comply with the public law requirements under the relevant authorities. If the Board were to consider the applicant’s appeal against the Director’s Second Decision, the Board is bound to consider the facts in the Director’s First Decision.

19.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

20.  It is apparent that the Board, pursuant to section 37ZT of the Ordinance, refused to extend time for the applicant to file his notice of appeal is based upon the fact that it was not satisfied with the explanations given by the applicant for his delay, which is significant and serious. There is no evidence that the Board had considered the merits of the applicant’s case by reference to the Director’s Decisions, which were, no doubt, on the file for the appeal or in the hearing bundle.

21.  In Re Khan Kamal Ahmed [2019] HKCA 377, the Court of Appeal held:

“16. Section 37ZT(3) of the Ordinance gives the Board the discretion to allow the late filing of a notice of appeal if it is satisfied that by reason of special circumstances, it would be unjust not to do so.

17. Where a notice of appeal to is filed out of time, s 37ZT(2) mandates the Board to decide as a preliminary decision without a hearing whether it allows the late filing of the notice of appeal, and in doing so, to take account of “any other relevant matters of fact within the knowledge of the Board” apart from the explanation for the delay.

…

20.   … … it was incumbent upon the Board, in exercise of its discretion to extend time for appeal, to take the merits of the applicant’s case into account regardless of the procedural breaches or the lack of explanation therefor.”

22.  Although the Board’s Second Decision predate the Court of Appeal’s decision, the legal principles of the above case apply and the Board had therefore, committed an error in law. On this basis, the applicant has a realistic chance of success in his intended application for judicial review.

23.  I note that section 37ZT of the Ordinance has been amended and is operative on 1 August 2021. The new section reads:

“Late filing of notice of appeal

(1) If a notice of appeal is filed after the expiry of the 14-day period referred to in section 37ZS(1), it must include an application for late filing of the notice, which—

(a) must include a statement of the reasons for failing to file the notice within that period; and

(b) must be accompanied by all available evidence relied on in support of the reasons referred to in paragraph (a). (Amended 7 of 2021 s. 19)

(2) The Appeal Board must decide, as a preliminary decision without a hearing, whether the Board allows the late filing of the notice of appeal under subsection (3), and in doing so, the Board may only take account of the statement of reasons stated in the application for late filing of the notice of appeal and the evidence relied on in support of the reasons. (Amended 7 of 2021 s. 19)

(3) The Appeal Board may allow the late filing of the notice of appeal if the person filing the notice provides sufficient evidence in writing to satisfy the Board that the person—

(a) had exercised all due diligence to file the notice within the period specified in section 37ZS(1); but

(b) failed to file the notice within the period because of circumstances beyond the person’s control. (Replaced 7 of 2021 s. 19)”

24.  If the case is remitted back to the Board for re-consideration, either by the same Board or another Board, the case should be considered under the law before the enactment of the amended version of section 37ZT, which does not retrospective effect.

25.  On this basis, I consider that the applicant has a realistic chance of success in his intended judicial review.

CONCLUSION

26.  Accordingly, I grant leave to the applicant to apply for judicial review of the Board’s Second Decision. The applicant shall take out an originating summons within 14 days after this Order for his application in accordance with Order 53, rule 5 of the RHC.

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