MUNIR RAHEEL v. TORTURE CLAIMS APPEAL BOARD

HCAL 633/2018

[2020] HKCFI 867

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNo. 633 of 2018

     Application for Leave to Apply for Judicial Review

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

Following:

Leave to apply for judicial review granted.

Observations for the Applicant:

1.  The Applicant is a 28-year-old national of Pakistan who entered Hong Kong illegally on 15 January 2014 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 some local gangsters for refusing to join their illegal activities including trafficking guns and firearms. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born in Sargodha District, Punjab, Pakistan and moved with his family to Gujrat when he was young and where he received his education. After leaving school he worked as a mechanic and then a loading worker.

3.  In 2002 he through work became acquainted with a man called Ali who hired him to drive him and his men to deliver some goods, during which they were stopped by the police who discovered that the goods were firearms, and as a result they were all arrested and detained for interrogation, but were later released after Ali had paid bribes to the police.

4.  After their release Ali approached the Applicant and invited him to join his gang, but when the Applicant refused as he did not want to be involved in their illegal activities, he was beaten up badly by Ali and his men. Thereafter Ali and his men continued to harass and threaten the Applicant to join their gang, and every time when he refused, they would beat him up badly.

5.  Unable to put up with such beatings any further, the Applicant later fled to Karachi, but when he heard that Ali and his men were looking for him everywhere, he decided that it was no longer safe to remain in Pakistan, and so in October 2013 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 11 March 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.  By a Notice of Decision dated 9 February 2017 the Director of Immigration (“The Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Tortur Claim”), risk of his absolute or non‑derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of 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 there will be any real risk of him being harmed or killed by Ali and his men upon his return to Pakistan in the absence of any official involvement in those illegal activities of Ali 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 202 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 young man with working experience to move to other part of Pakistan away from his home district in large cities such as Lahore where it would be difficult if not impossible for Ali and his men to locate him.

8.  On 15 March 2017 the Applicant lodged an appeal to the Torture Claims Appeal Board (“The Board”) against the Director’s decision, but by then he was out of time with his Notice of Appeal, as section 37ZS of the Ordinance requires that the notice of appeal must be filed within 14 days after notice of the Director’s decision has been given to an applicant unless late filing is allowed by the Board, and in the Applicant’s case, the last day of the 14-day period for him to file his Notice of Appeal fell on 23 February 2017, and hence he was late by about 3 weeks with his intended appeal.

9.  In his Notice of Appeal, the Applicant set out his grounds of appeal in Section 2, and in Section 5 he gave the following reasons for his late filing:

“The reason for late filing of my appeal is that immigration gave me appeal papers on 14-03-2017 when I went for reporting and told me to fill all the documents and submit at Wan Chai Immigration. Sir, because of it, I was late. Sir, they (immigration) are the reason for my late (filing). Therefore, (deletion) (sd) (signed: RAHEEL), I am submitting all my documents to Wan Chai Immigration today on 15-03-2017.”

10.  In considering whether to allow late filing of the notice of appeal, section 37ZT of the Ordinance 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 reason 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.”

11.  Accordingly, the Board considered the Applicant’s late filing of his notice of appeal on papers without a hearing, and by a written notice dated 4 April 2018 it informed the Applicant that the late filing of his notice of appeal was not allowed.

12.  On 13 April 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he merely repeated his claim that he cannot go back to his home country until his problem is solved without putting forward any proper or valid ground for his intended application.

13.  Nevertheless, in considering such application, the court will adopt an enhanced standard in scrutinizing the decision of the Board in view of the seriousness of the issues at hand, of which I shall proceed to do regarding the Board’s reasons for refusing to allow the Applicant’s late filing of his notice of appeal.

14.  In its decision the Board found that the Applicant adduced no documentary evidence in support of his claimed reasons why his appeal was late, and refused his late filing for the following reasons:

“18. The Board has evaluated all the circumstances of this application in accordance with the applicable legal provisions, especially section 37ZV(3) of the Ordinance, bearing in mind the principles stated in SSHD v Begum. Those principles are that there is a need to enforce compliance with rules as set out in the Ordinance; and the need for this type of application to be conducted efficiently and at proportionate cost.

19. The delay in submitting the Notice of Appeal is over the statutory time limit for submission and the Board is not satisfied that any special circumstances pursuant to section 37ZT(3) of the Ordinance have been shown.

20.    The late filing of the Notice of Appeal is disallowed pursuant to section 37ZT(4) of the Ordinance.”

15.  It therefore seems to me that the Board refused the late filing of the Notice of Appeal essentially because it was not satisfied that any special circumstances had been shown pursuant to section 37ZT(3) of the Ordinance. However, as noted above, subsection (2)(b) requires that the Board in making its decision must take account of any other relevant matters of fact within its knowledge, and as held in SSHD v Begum, (2016) EWCA Civ 122, on which the Board had alluded to at [18] of its decision as above, even where there is a serious or significant breach for which no good reason is given, the decision-maker should move on to evaluate all the circumstances of the case that he knows of.

16.  In identifying what circumstances are relevant, the Court of Appeal in Re Qasim Ali [2019] HKCA 430, 8 April 2019 held that the merits of the appeal must be taken into account for consideration, as Hon Lisa Wong J stated in the judgment as follows:

“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.”

17.  In the Applicant’s case, for similar reasons it is in my view reasonably arguable that the Board in refusing the Applicant’s late filing of his Notice of Appeal failed to take account of the merits of his appeal, and accordingly I grant leave to the Applicant to apply for judicial review of the Board’s decision based on that ground, and direct that he shall file an originating summons within 14 days of his receipt of this decision, and to serve a copy 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