JOSEPH NABEEL v. TORTURE CLAIMS APPEAL BOARD

HCAL 3853/2019

[2024] HKCFI 1969

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 3853 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 decision of Torture Claims Appeal Board dated 1 December 2016 be granted;

(3)  The Applicant do issue the Originating Summons within 14 days from the date hereof in accordance with Order 53, rule 5 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 43-year-old national of Pakistan who entered Hong Kong illegally on 18 November 2010 and was arrested by police on the same day. After he was referred to the Immigration Department for investigation, 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 his girlfriend’s family who objected to their relationship. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised as a Christian in Jalalpur Jattan, District Gujrat, Punjab, Pakistan. After leaving school he worked as a field worker for a courier service in Gujrat, and dated his girlfriend from a wealthy Muslim family in his home district.

3.  In 2000 proposed to marry his girlfriend but was rejected by her family due to their different religious and social status, and demanded the Applicant to end their relationship, but still the Applicant and his girlfriend continued to see each other which had angered her family.

4.  One day in early 2010 the Applicant was confronted by his girlfriend’s brothers and cousins who threatened and beat him on the street, and before they left, one of the brothers pulled out a pistol and threatened to kill him next time if he still failed to heed their warning to stop seeing his girlfriend.

5.  Thereafter the Applicant became fearful for his life, and on 4 November 2010 he departed Pakistan 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 18 August 2015 and attended screening interview before the Immigration Department with legal representation.

6.  By a Notice of Decision dated 16 February 2016 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”).

7.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that he would be in danger of being harmed or killed by his girlfriend’s family upon his return to Pakistan 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 other than to press him to end his relationship with his girlfriend, that in any event it was a private and personal dispute between him and his girlfriend’s family 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 199 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 where it would be difficult if not impossible for anyone to locate him.

8.  On 24 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 upon receipt of the decision as required under Section 37ZS (1) of the Immigration Ordinance, and in pursuance of Section 37ZT (2) the Board proceeded to decide as a preliminary decision without a hearing whether to allow the late filing of the Notice of Appeal, and by a Decision dated 1 December 2016 the Board refused to allow the Applicant’s late filing of his Notice of Appeal.

9.  In its decision the Board found the filing of the Applicant’s Notice of Appeal to have been more than 5 months late, that the delay was very substantial and inordinate, that the Applicant’s stated explanations of having lost the original Notice of Appeal Form and that he was unable to read or write English and hence not aware of the contents of the decision served on him were not supported by any documentary evidence and were not acceptable as it was open to him to approach the DLS or the Immigration Department for assistance that his application was devoid of merits, and that there were no other relevant matters of fact within the Board’s knowledge amounting to special circumstances which would make it unjust not to allow the late filing of his Notice of Appeal (see [6] – [12] of the Board’s Decision).

10.  Meanwhile on 6 February 2017 the Director on his own initiative in writing invited the Applicant to submit additional facts which 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 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 10 March 2017 also rejected the Applicant’s BOR 2 Claim upon finding that he 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.

11.  The Applicant did not lodge any appeal to the Board against this Further Decision of the Director, and on 24 December 2019 he filed his Form 86 for leave to apply for judicial review of the Board’s decision which refused the late filing of his Notice of Appeal against the Director’s earlier decision in rejecting his non-refoulement claim on torture risk, BOR 3 risk and persecution risk, and in his supporting affirmation he put forward the following grounds for his intended challenge:

(1)  That the Board reached the decision wrongly in assessing his non-refoulement claim as the decision was not fair or reasonable as required by the Wednesbury test in failing to recognize that his life must be protected by the criminal law from extra-judicial killings that he may face if deported back to his home country;

(2)  That the Board failed to appreciate or place proper or sufficient weight or importance to the presence of State Acquiescence in his case which led to an unfair outcome of rejecting his claim without realizing that he was tortured at the behest of the state law enforcement agencies and politicians that the state would be rendered liable to the Applicant by cause of the state and its public officials failing to provide reasonable protection for its citizens under the duty of due diligence;

(3)  That the Adjudicator acted unreasonable and was procedurally unfair by placing too much reliance on COI but failed to take into account the Applicant’s personal background and experience in assessing his claim;

(4)  That the Board had listed relevant COI which supported the Applicant’s aversions that the police in his country would not be able to protect but failed to consider or give sufficient weight to such evidence and instead ruled otherwise against the Applicant’s case which was a clear case of unfair attitude shown by the Board which in itself is enough to render its decision void;

(5)  That the Board failed to attain the high standard of fairness required by the Wednesbury test in failing to take into account the Applicant’s argument that corruption and incompetency of the administration in the Applicant’s country is still a very serious problem as various human rights organizations had compiled reports that stated testament to the Applicant’s assertions; and

(6)  That the Adjudicator failed to give the Applicant sufficient time and opportunity to arrange relevant evidence for his non-refoulement claim as well as his appeal.

12.  By then the Applicant was however seriously 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 fell on 1 March 2017, the Applicant was therefore more than 2 ½ years 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.

14.  In the Applicant’s case, a delay of more than 2 ½ years must be considered as extremely substantial and inordinate, for which he explained in his supporting affirmation that he was arrested by police on 3 August 2016 for drugs trafficking and had been in detention up to his conviction on 11 June 2019 when he was then sent to prison, but that he was subsequently successful with his appeal and was acquitted by the Court of Appeal on 20 November 2019, and that it was only after his release from prison that he was able to file his Form 86 which accounted for his serious delay.

15.  The record shows that Board’s decision was sent on the same day of 1 December 2016 to the Applicant’s then detention at Lai Chi Kok Reception Centre without being returned through undelivered post, and while it is accepted that there would be the inevitable delays caused to incoming and outgoing mails and restrictions in accessing legal assistance when under detention or in prison, given that assistances from welfare officers within the Correctional Institutions are available to detainees and prisoners, I am not satisfied that the Applicant has provided a good or valid justification for his such serious delay of more than 2 ½ years.

16.  As for the merits of his intended application, given the fact that the Applicant’s claim/appeal had never been assessed or determined by the Board as noted above after it refused to allow the late filing of his Notice of Appeal, those grounds put forward by him all being complaints over findings as to his non-refoulement claim appear to me to have been just copied from those of other claimants and are clearly not applicable or relevant to his intended challenge of the Board’s decision.

17.  However, given the seriousness of the issue at hand and the implication of the Board’s decision in denying the Applicant of the right to the second-tier screening process of his non-refoulement claim by the Board under Unified Screening Mechanism (“USM”) due to a procedural breach (albeit a serious one), and in which his life and limb were said to be in jeopardy, and while the Applicant failed to attend the hearing of his application without any explanation, the Court will nevertheless adopt an enhanced standard in scrutinizing the Board’s reasons for refusing the Applicant’s application for late filing of his Notice of Appeal.

18.  Firstly, in refusing to accept the Applicant’s given reasons for the delay of not being able to read or write English, it seems to me that the Board failed to take account of the fact that the Applicant was then in detention or prison at the Lai Chi Kok Reception Centre, as he had so stated in his Notice of Appeal, and hence might not have been able to approach the DLS or the Immigration Department for assistance as found by the Board (see [11] of the Board’s Decision). As such it seems to me reasonably arguable that the Board failed to make proper or sufficient inquiry into the Applicant’s reasons for his delay in the filing of his Notice of Appeal.

19.  More significantly, it seems that the Board in refusing to allow the late filing of the Applicant’s Notice of Appeal failed to take account of the merits of the appeal as part of the relevant matters of fact within its knowledge as required under Section 37ZT (2)(b) of the Immigration Ordinance, and as held to be relevant by the Court of Appeal in Re Khan Kamal Ahmed, CACV 563/2018, 2 April 2019 [2019] HKCA 377, and Re Qasim Ali, CACV 547/2018, 8 April 2019 [2019] HKCA 430, as Lisa Wong J in giving the judgment of the Court in the latter case elaborated as follows:

“23. … 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 decision 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 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 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.”

20.  In the premises, and for the reasons given, I am of the view that the Applicant’s intended application for judicial review of the Board’s decision in refusing to allow the late filing of his Notice of Appeal is reasonably arguable on the grounds that the Board (1) failed to make proper or sufficient inquiry into the Applicant’s stated reasons for the delay; and (2) failed to take account of the merits of the Applicant’s appeal as part of the relevant matters of fact within its knowledge under Section 37ZT(2)(b) of the Immigration Ordinance, thus meeting the threshold for leave to be granted as laid down in v Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

21.  Accordingly, I extend time to the Applicant’s late application, and grant leave to him to apply for judicial review of the Board’s decision on the grounds as stated above, and direct that he shall file and issue his 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