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HCAL1128/2017
[2018] HKCFI 1142
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1128 of 2017
BETWEEN
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Ashiq Hussain |
Applicant |
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and |
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Torture Claims Appeal Board /
Non-refoulement Claims Petition Office |
Respondent |
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Director of Immigration |
Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s Decision (Ord. 53 r. 3)
Following;
Order by Deputy High Court Judge Josiah Lam:
1. Leave to apply for judicial review be granted.
2. Costs be reserved.
Observations for the Applicant
Background
1. The Applicant is a Pakistan national. He is now aged 44 (DOB: 1974).
2. The Applicant claimed he would be ill-treated, tortured or even killed by a moneylender in Pakistan if he was refouled there.
3. The Applicant said he had borrowed 2.2 million rupees from a moneylender in mid-2010 to start a trading business. The moneylender had close connections with the police and politicians of the Muslim Conference Party.
4. In mid-2011, the Applicant’s business suffered loss. He was unable to repay monthly interest to the moneylender.
5. In mid-2012, the moneylender went to the Applicant with some men. One was even armed with a pistol. The beat the Applicant when he could not make repayment. They warned the Applicant that he would be further beaten if he failed to pay up the debt.
6. The next day, the Applicant was abducted by some armed men. They threatened to kill him and his family if he could not settle the debt. He was assaulted before being released.
7. Two days later, the moneylender again sent armed men to the Applicant’s home to make a scene. Someone even fired gunshots into the air. Those men uttered death threats against the Applicant and his family before leaving.
8. The Applicant did not report the matter to the police. He thought the police were corrupt.
9. The Applicant’s business was closed down in 2013 due to bad performance.
10. In early 2014, the Applicant relocated himself and his family to another part of Punjab. He still did not feel safe. He settled his family and then alone moved to live elsewhere.
11. On 9 April 2014, the Applicant left Pakistan by air. He later arrived in China.
12. On 18 April 2014, the Applicant entered Hong Kong illegally. He was arrested by the police on 1 May 2014 and subsequently sought non-refoulement protection.
13. The Applicant said his wife in Pakistan told him that the moneylender was still looking for him. The Applicant claimed he would be tortured or even killed by the moneylender if he returned to Pakistan.
14. The Applicant thought the Pakistan authorities could not offer protection because the police were corrupt and often demanded bribes. He believed the police would only help the rich like the moneylender, who also had a good relationship with politicians.
15. The Applicant did not think internal relocation was viable. He did not trust the system in Pakistan.
16. In the ensuing two-tier screening process here (“the Unified Screening Mechanism”), the Director of Immigration (“the Director”) on 25 February 2016 refused the Applicant’s claim with respect to these three applicable grounds: (i) risk of torture,[1] (ii) risk of persecution,[2] and (iii) risk of torture or cruel, inhuman or degrading treatment or punishment (CIDTP risk or BOR3 risk)[3]. Later, on 24 November 2016 the Director further refused the Applicant’s claim with respect to the fourth applicable grounds: (iv) risk of violation of the right to life (BOR2 risk)[4].
17. On 7 December 2016, the Applicant appealed to the Torture Claims Appeal Board/ Non-Refoulement Claims Petition Office (“TCAB/NCPO” or simply “the Board”).
18. A year later, on 12 December 2017 the Adjudicator considered the Applicant filed his appeal late. He refused the Applicant’s appeal on the ground that there was no justification for the lateness.
19. On 21 December 2017, the Applicant applied for leave for judicial review.
Chronology of events
20. Things happened in this order: –
| 2014-4-9 |
The Applicant left Pakistan for China. |
| 2014-4-18 |
The Applicant entered Hong Kong illegally. |
| 2014-5-1 |
The Applicant was arrested by the police for illegal remaining. |
| 2014-5-3 |
The Applicant lodged a non-refoulement claim. |
| 2015-12-29 |
The Director held a screening interview with the Applicant. |
| 2016-2-25 |
The Director refused the Applicant’s claim with respect to these three applicable grounds: (i) torture risk, (ii) persecution risk and (iii) CIDTP risk (BOR3 risk). [“the Director's first decision”] |
| 2016-11-8 |
The Director invited the Applicant to submit additional facts for the consideration of life risk (BOR2 risk). |
| 2016-11-22 |
The Applicant failed to submit any additional facts by deadline or thereafter. |
| 2016-11-24 |
The Director refused the Applicant's claim with respect to the fourth applicable ground: life risk (BOR2 risk). [“the Director's further decision”] |
| 2016-12-7 |
The Applicant appealed to the Board. |
| 2017-12-12 |
The Adjudicator refused the Applicant’s late filing of appeal. |
| 2017-12-21 |
The Applicant applied for leave for judicial review. |
Respondent/Interested Party
21. The Unified Screening Mechanism is a two-tier process. The Director screens an applicant’s non-refoulement claim first; the applicant may appeal to the Board which deals with his/her case on a rehearing basis.
22. In Form 86 (the notice of application for leave to apply for judicial review) [Folio 1], the Applicant named the Board as respondent and the Director as interested party.
Director of Immigration (the Director)
23. In the Director’s decision dated 25 February 2016, the immigration officer found the level of risk against the Applicant by the moneylender was low. The Applicant had not been inflicted with ill-treatment to a minimum level of severity. The officer considered there was reasonable state protection in Pakistan, only that the Applicant failed to report his situation to the authorities. The officer also found that reasonable internal relocation was viable in the Applicant's case.
24. The officer did not accept the Applicant had a real BOR3 risk or a well-founded persecution risk or any torture risk that warranted non-refoulement protection.
25. On 25 February 2016, the officer refused the Applicant’s claim with respect to these three applicable grounds: (i) torture risk, (ii) persecution risk, and (iii) CIDTP risk (BOR3 risk).
26. Later, the Director wrote to the Applicant inviting him to submit additional facts for the consideration of the fourth applicable ground, i.e. life risk (BOR2 risk). However, the Applicant did not respond by the deadline of 22 November 2016 or thereafter.
27. In the Director’s further decision dated 24 November 2016, the officer considered the Applicant failed to establish a personal and real risk of his rights under the HKBOR being violated (including right to life under BOR2). He refused the Applicant’s claim with respect to the fourth applicable ground: life risk (BOR2 risk).
TCAB/NCPO (the Board)
28. The Applicant filed an appeal to the Board. The Notice of Appeal/Petition was dated 7 December 2016. In Section 2B (Grounds of Appeal/Petition) of the notice, the Applicant simply said it was not safe for him to go back. He prayed for the Board’s consideration of his case.
29. The said appeal notice was filled out in English except for Section 5 (Application for Late Filing of Notice of Appeal/Petition), which was written in Punjabi language. That had been later translated as “The reason I am late is that by the time I received these documents, I had already applied another case so no one told me it was necessary. Therefore I am late.”
30. An appeal against any of the Director's decisions should be filed within 14 days after notice of the decision was given to the Applicant.[5] The Adjudicator treated the Applicant as applying for appeal against the Director's decision dated 25 February 2016. He thus considered the appeal application was nine months late by the time it was filed by the Applicant on 7 December 2016. The Adjudicator did not accept there was any justification for the lateness. He, therefore, on 12 December 2017 refused the Applicant’s late filing of appeal.
Grounds of judicial review
31. In his affirmation and Form 86, the Applicant complained the Board failed to hold an oral hearing.
Court hearing
32. In Form 86, the Applicant requested a hearing. The hearing was scheduled on 11 May 2018. However, the Applicant was absent. As such, his application for leave for judicial review was processed on consideration of documents only.
Discussion
33. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.
34. A non-refoulement claim involves ‘life and limb’; any decision will bear significant consequences on an applicant. Therefore, high standards of fairness must be achieved. The court should look at an applicant’s case under ‘rigorous examination and anxious scrutiny’.[6]
Late filing of appeal to the Board
35. s.37ZS (1) of the Immigration Ordinance states: –
A person who wishes to appeal against a decision referred to in section 37ZR must file with the Appeal Board a notice of appeal within 14 days after notice of the decision is given to the person unless late filing of the notice is allowed by the Board under section 37ZT(3).
36. s. 37ZT of the Immigration Ordinance, Cap 115 provides: –
(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.
37. There was only one non-refoulement claim by the Applicant. However, such claim had to be considered in relation to four different applicable grounds: (i) torture risk, (ii) persecution risk, (iii) CIDTP risk (BOR3 risk) and (iv) life risk (BOR2 risk). The four applicable grounds had to be given separate consideration though the background facts were the same.
38. In the present case, the Director dealt with the four applicable grounds by two decisions separated by a span of nine months; the Director's first decision was rendered on 25 February 2016 and his further decision was made on 24 November 2016.
39. In his notice of appeal dated 7 December 2016, the Applicant did not state he was just appealing against one but not the other decision of the Director's. Although the Applicant had filled in Section 5 of the Notice of Appeal to explain why he was late in filing, that was only relevant to the Director's first decision. It would not preclude the Applicant from exercising his right to appeal against the Director’s further decision. The Applicant's appeal was late in relation to the Director's first decision only but not late with respect to the Director's further decision.
40. I have reviewed both decisions of the Director’s and that of the Adjudicator’s. I have also reviewed the said Notice of Appeal/Petition dated 7 December 2016. I agree with the Adjudicator that there were no good grounds or special circumstances to justify the Applicant’s late filing of appeal. However, that ruling was only applicable to the Director's first decision dated 25 February 2016. The Applicant’s Notice of Appeal/Petition was not late for the Director's further decision dated 24 November 2016.
41. While the Applicant was unreasonably late in filing appeal against the Director's first decision with respect to torture risk, persecution risk and CIDTP risk (BOR3 risk), his appeal was not late in relation to the Director's further decision on the fourth applicable ground of life risk (BOR2 risk). Therefore, the Adjudicator was obliged to consider the Applicant's appeal but only in relation to the Director's further decision dated 24 November 2016 on the applicable ground of life risk (BOR2 risk). He need not deal with the other three applicable grounds because there was no effective appeal against the Director's first decision dated 25 February 2016.
Conclusion
42. On the limited basis as stated in paragraph 41 above, the Applicant’s complaint against the Board’s decision is arguable. I therefore grant him leave for judicial review to that extent; costs be reserved.
Dated 29th day of May 2018
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(Alan Ngan)
for Registrar, High Court |
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
Notes for the Applicant:
If leave has been granted, the Applicant or his solicitors must: |
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted(Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)). |
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Sent to the Applicant on 29/5/2018
Ashiq Hussain
Applicant’s ref. no:
Nil. |
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Sent to the Respondent / the Respondent’s solicitors / such Interested Parties as may be directed by the Court / the Interested Parties’ solicitors on 29/5/2018
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
Respondent’s ref. no.:
USM 5438/16/12/85/P1229
Director of Immigration
Interested Party’s ref. no.:
QA T/C 2181/15 & RBCZ 9000593/16 (formerly RBCZ 2068/14)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] As defined in Part VIIC of the Immigration Ordinance, Cap 115, which definition is the same as that found in Article 1 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
[2] By reference to the non-refoulement principle under Articles 33 and 1A(2) of the 1951 Convention relating to the Status of Refugees.
[3] Under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[4] Under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[5] The Immigration Ordinance, Cap. 115, s.37ZS(1).
[6] Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45.
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