SHAHBAZ AHMED v. TORTURE CLAIMS APPEAL BOARD /NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 345/2018

[2019] HKCFI 1498

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 345 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 the Applicant being present / absent in open court;

1.  leave be granted to the applicant to apply for judicial review of the decision of the Torture Claims Appeal Board (“the Board”) made on 28 February 2018 on the ground that the Board had failed to consider the substance of the applicant’s non-refoulement claim which is a relevant matter of fact within the Board’s knowledge under section 37ZT(2)(b) of the Ordinance;

2.  the applicant shall file and serve an originating summons within 14 days from the date of the receipt of the decision hereof by him; and

3.  the applicant to serve a copy thereof with all relevant documents on the Board as respondent and the Director of Immigration as interested party.

Observations for the Applicant:

1.  The applicant is a 46-year-old national of Pakistan who arrived in Hong Kong on 28 October 2015 and when he was refused entry by the Immigration Department, he raised a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed by certain member of rival political party Pakistan Muslim League (N) (“PML(N)”) over a land dispute and/or by the police for participating in protests against the government. He was subsequently released on recognizance pending the determination of his claim.

2.  The applicant was born and raised in Farooqabad, Sheikhupura, Punjab, Pakistan.  After leaving school he joined the political party Pakistan Tehreek-e-Insaf Party (“PTI”) as an ordinary member, got married with three children, and inherited some farmland in his village upon the death of his father in 2006.

3.  In March 2006 a PML(N) member Irfan who was also a wealthy landowner in the same village came onto the applicant’s land with armed men and declared that he was going to occupy the applicant’s land, and threatened to kill the applicant if he refused, and as the applicant was fleeing from the scene, Irfan’s men fired shots at him from behind but missed him.

4.  After the incident the applicant reported the matter to the police, but when he was told that there was nothing they could do as Irfan was a powerful and influential member of PML(N), the applicant took shelter at his uncle’s place in Kot Addu and filed a court case in the Punjab High Court against Irfan for illegally occupying his land.

5.  Before any decision was rendered by the court in respect of his action, the applicant was attacked by Irfan’s men one day in August 2007 who punched and kicked him that he lost consciousness and was subsequently taken to a local clinic for treatments.  Afterwards he was advised by his brother to avoid Irfan by leaving Pakistan, which he did in September 2007 when he went to work in Dubai.

6.  However, one day in August 2008 while he was on his way home after work, the applicant was ambushed by men whom he suspected were sent by Irfan who punched and kicked him on the street, and before they left they warned him that they would kill him.  As the applicant realized that it was no longer safe for him to remain in Dubai, he subsequently returned to Pakistan where he stayed at a friend’s place in Khairpur in Sindh Province and worked in his friend’s shop.

7.  One day in March 2009 when he was on his way to work, some unknown men on motorcycles rode by and shot at him with rifles but he managed to escape unharmed.  He suspected that they were sent by Irfan and therefore fled to another friend’s place in Bannu where he remained for more than two years without any incidents until one day in June 2011 when he was driving with his friend to the fruit market, some men from another vehicle approached them and shot at them with assault rifles, but when his friend returned fire at them with his rifle, those men just sped away.

8.  After the incident the applicant felt it was no longer safe in Bannu, and so he moved to Hazro in Punjab where he stayed without incidents until 2013 when he returned to his home village to participate in PTI’s campaign for the 2013 general election and in their subsequent protests with his brother in Islamabad in 2014 which led to clashes with the police, and had as a result been targeted by the police.

9.  One night in May 2015 while on the way to his home village in Sheikhupura, Punjab to meet with his family, the applicant was assaulted by several unknown men during which acid was poured onto his back and caused him serious burns and injuries.  After his discharge from hospital the applicant returned to Hazro, but later in September 2015 when he heard that his brother had been killed by the police for resisting arrest, and that Irfan and his men were still looking for him everywhere, he decided to leave Pakistan again for his own safety, which he did in October 2015 for Hong Kong, and when he was refused entry he raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 23 December 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

10.  By a Notice of Decision dated 5 February 2016 the Director of Immigration (“the 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 (“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”).

11.  In his decision the Director took into account all the relevant circumstances of the applicant’s claim and assessed the level of risk of harm from Irfan and his men to the applicant upon his return to Pakistan as low as Irfan had already taken possession of his land since 2006 there was no longer any reason to harm or kill him, that there is no reliable and objective evidence that Irfan was involved in any of those alleged attacks of the applicant in various places outside his home village, that at any rate it was a private property dispute between them without any official involvement that state or police protection would be available to the applicant if resorted to, that there is no evidence that he is being pursued by the police as he was able to leave Pakistan without any problem, 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 work experience to move to other areas away from his home district in large cities such as Karachi where it would be difficult if not impossible for Irfan or his men to locate him.

12.  By a Notice of Further Decision dated 7 December 2016 the Director again rejected the applicant’s claim upon receiving and considering further submissions from the applicant which may be 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”).

13.  On 23 December 2016 the applicant filed a Notice of Appeal/Petition to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, but by then he was late by more than 10 months as section 37ZS(1) of Part VIIC of the Ordinance requires that the notice of appeal be filed within 14 days of the Director’s decision, unless its late filing is allowed by the Board under section 37ZT which provides as follows:

“ (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 any documentary evidence relied on in support of the reasons referred to in paragraph (a).

(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—

(a)  the statement of reasons stated in the application for late filing of the notice of appeal and any accompanying documentary evidence relied on in support of those reasons; and

(b)  any other relevant matters of fact within the knowledge of the Board.

(3)  If the Appeal Board is satisfied that by reasons of special circumstances, it would be unjust not to allow the late filing of the notice of appeal, the Board may allow the late filing of the notice and must, by written notice, inform the person filing the notice of the Board’s decision.

(4)  If the Appeal Board does not allow the late filing of the notice of appeal, the Board must, by written notice, inform the person filing the notice that the Board refuses the notice as it is filed out of time.”

14.  On 28 February 2018 the Board by a written notice to the applicant refused to allow his late filing of his Notice of Appeal upon finding that he had failed to provide any reasons therefor.  

15.  On 5 March 2018 the applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking review was given in his Form, and in his supporting affirmation of the same date he merely stated that:

“ I want to inform court immigration department they made decision without my appearance against me. I know this Immigration and Department consideration but I humbly request my life is danger in my origin country in Pakistan. I am humbly request please save my life and give to me time I sort out my matter in Pakistan. Could you please consider my genuine situation.” [sic]

16.  The applicant did not request for any oral hearing for his leave application, and up to now no ground has been put forward by him other than a complaint of not being given an appearance before the Board, and in his subsequent letter to this Court received on 20 August 2018, he merely repeated his claim of his fear of being harmed or killed by Irfan if he is refouled to Pakistan, and requested the Court to reconsider his situation.

17.  According to the applicant’s Notice of Appeal supplied by the Board, the copy of the Director’s decision which accompanied it was the one dated 5 February 2016, hence it is clear that he had intended to appeal against that earlier and more comprehensive decision of the Director rather than the later Further Decision of 7 December 2016, and for which as noted above he was late with his Notice of Appeal by more than 10 months.  

18.  In its decision to refuse the applicant’s late filing of his Notice of Appeal, the Board gave the following reasons:

“ 8.  A Notice of Appeal/Petition signed by the Applicant dated 19 December 2016 was not received by the Torture Claims Appeal Board/ Non-Refoulement Claims Petition Office (‘the Board’) until 23 December 2016. Under section 5 of the Notice of Appeal/Petition no reason was given for the late filing of the Notice of Appeal/Petition.

9.  In a letter dated 21 August 2017 from the Board addressed to the Applicant at the address given by him in his Notice of Appeal/Petition, Room 201, 2^nd floor, Block A, Wai Ching Court, 14–42 Wai Ching Street, Yau Ma Tei, Kowloon it was drawn to the Applicant’s attention that, as his Notice of Appeal/Petition was filed out of time, he was required to complete section 5 of the Notice of Appeal/Petition form (whereby an Applicant is required to give statement of reasons for the late filing of his Notice of Appeal/Petition). He was warned that if he failed to do so it would be assumed that he had decided not to provide reasons for late filing of the Notice of Appeal/Petition.

10.  The letter of 21 August 2017 was not returned to the Board and the Applicant has not provided any reasons for the late filing of his Notice of Appeal/Petition.

11.  In such circumstances having reviewed the case the Board has decided not to allow the late filing of the Notice of Appeal/Petition.”

19.  It is therefore clear that the Board refused the applicant’s late filing solely because he did not provide any reason for his delay, and while the applicant has no basis to complain of not being given any hearing for his appeal as section 37ZT(2) of the Ordinance stipulates that the Board must decide as a preliminary decision without a hearing, its subsection (b) also requires the Board to take into account of “any other relevant matters of fact within the knowledge of the Board”, which should in my view include the grounds put forward by the applicant for his intended appeal in section 2 of his Notice of Appeal, ie the merits of his appeal and the substance of his claim which the Board should have taken into account in deciding whether or not to allow his late filing of his Notice of appeal, as was so held by the Court of Appeal in Re Qasim Ali [2019] HKCA 430 (CACV 547/2018, 8 April 2019), where Lisa Wong J in giving judgment of the Court stated:

“ 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 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 it is reasonably arguable that the Board had failed to consider the substance of the applicant’s non-refoulement claim which is a relevant matter of fact within the Board’s knowledge under section 37ZT(2)(b) of the Ordinance, and accordingly I grant leave to the applicant to apply for judicial review of the Board’s decision on this ground, for which the applicant shall file and serve an originating summons within 14 days from the date of the receipt of this decision by him, and to serve a copy thereof with all 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