HUSSAIN ARSLAN v. TORTURE CLAIMS APPEAL BOARD

HCAL 943/2019

[2023] HKCFI 836

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 943 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 oral submissions by (counsel for) the Applicant in open court / the Applicant being absent in open court;

1.  Leave to apply for Judicial Review be granted; and

2.  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).

Observations for the Applicant:

1.  The Applicant is a 31-year-old national of Pakistan who entered Hong Kong illegally on 4 November 2015 and was arrested by police on 6 November 2015. 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 his cousins and other local supporters of the political party Pakistan Muslim League (N) (“PML(N)”) as he supported their rival Pakistan Tehreek-e-Insaf (“PTI”) and refused to join their party. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Village Singal, Tehsil Kalarsydan, District Rawalpindi, Pakistan. After leaving school he worked in the trade of buying and selling motorcycles, and supported PTI regularly attended their local meetings and activities without holding any official post in the party.

3.  However, as most of his family members and relatives supported PML(N) which had led to frequent conflicts between him and his relatives, in particularly when his cousins often demanded that he should leave PTI to join their party.

4.  One day in 2015 when his cousins again tried to persuade him to join PML(N), it led to a heated argument between them which deteriorated into a fight during which the Applicant was beaten with wooden sticks that he lost consciousness after being struck in the head and was subsequently taken to the hospital for medical treatments.

5.  Upon his discharge form the hospital, the Applicant became fearful for his safety and fled to Rawalpindi, but later when he heard that his cousins and other PML(N) supporters were looking for him everywhere, he felt it was no longer safe to remain in Pakistan, and so on 29 October 2015 he departed for China, and from there he later sneaked into Hong Kong, and after 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 24 January 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.  By a Notice of Decision dated 5 February 2018 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), 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 and substantial risk of him being harmed or killed by his cousins or other PML(N) supporters 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 the Applicant other than to put pressure on him to join their party, that in the absence of 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 207 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 part 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 7 March 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but as his Notice of Appeal was found to have been filed outside the 14-day period required by Section 37ZS(1) of the Immigration Ordinance, and in pursuance of Section 37ZT(2) of the Ordinance, the Board proceeded to decide as a preliminary decision without a hearing whether to allow the late filing of his Notice of Appeal, and by a decision dated 22 February 2019 the Board refused to allow the late filing of the Applicant’s Notice of Appeal.

9.  In its decision and in applying the provisions under Section 37ZT(2) and (3) of the Ordinance, the Board found that the Director’s decision was sent to the Applicant’s lawyer from DLS on 5 February 2018 and hence the deadline for him to file his Notice of Appeal fell on 21 February 2018, that he was 14 days late when he eventually filed his Notice of Appeal on 7 March 2018 without legal representation, that such delay was a serious and significant failure to comply with the rules, that his explanations of not being educated or able to read or write English and that there was no one to help him to fill in his Notice of Appeal were not acceptable as valid reasons for his serious delay, and that there were no other matters known to the Board or revealed by the factual basis of his claim that might amount to special circumstances which might make it unjust not to allow the late filing of his Notice of Appeal.

10.  On 8 April 2019 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 or in his supporting affirmation of the same date, nor did he request any oral hearing for his application, but given the seriousness of the issue at hand and the implication of depriving the Applicant of the second-tier screening process of his non-refoulement claim by the Board under the Unified Screening Mechanism (“USM”) due to a procedural breach, and in which his life and limbs were said to be at stake, the Court will adopt an enhanced standard in scrutinizing the Board’s reasons for refusing to allow the late filing of his Notice of Appeal.

11.  Before going into the Board’s reasons as given in its decision, it would be relevant to first note that in the Notice of Appeal, the Applicant disclosed that he was then being detained at the Castle Peak Bay Immigration Centre (“CIC”), and stated various grounds of appeal in Section 2 of his Notice of Appeal as well as reasons for its late filing in Section 5 of the Notice.

12.  Accordingly, the Board in its decision made the following findings on the Applicant’s given reasons for the late filing of his Notice of Appeal:

“4. The Appellant’s reasons for the late filing of the Notice of Appeal were set out in Section 5 as follows:

‘Because I am not educated I don’t know how to fill the notice of Appeal/Petition form I can’t Read and write English. I come from the Prison in c-i-c before no body was there for help me. But now in c-i-c one of my friend help me to fill it. I Request Please accept my late filing Appeal/Petition Application form. I am Really very sorry for late filing thank you.’

5. A letter from the Appellant to the TCAB dated 11 March 2018 confirmed that he received the Director’s Notice of Decision from his legal representative assigned by the DLS on 12 February 2018 when he was in Tong Tau Prison in Stanley, and his release date was on 2 March 2018. He re-iterated the reasons for late filing, in paragraph 4 above, in the said letter.

6. The statutory regime which governs late filing of the Notice of Appeal is strict and the Appellant has a duty to establish the claim and to that end, he must comply with the time limit. (Section 37ZA(1)(b) of the Immigration Ordinance, Cap 115 (“The Ordinance”))

7. Given the strict regime governing late filing of the Notice of Appeal, it matters not whether the delay here is 14 days, or longer, the Appellant must be able to show the special circumstances which would make it unjust to refuse his application for late filing of the Notice of Appeal.

8. In Section 5 of the Notice of Appeal, the Appellant stated that his late filing were because he was not educated, could not read and write English, and there was no one to help him to fill in the Notice of Appeal until he was sent to Castle Peak Bay Immigration Centre (“CIC”) from prison.”

13.  The Board then set out the relevant provisions under Section 37ZT of the Ordinance for the consideration and determination of such applications, and also cited the 3-stage approach set out in the UK case of The Secretary of State for the Home Department v Begum (2016) ECWA Civ 122 (03 March 2016) for the consideration of the applications, and in applying these principles the Board arrived at the following findings and conclusion:

“18. Following the principles and methodology in the United Kingdom Begum case, I found, firstly, that a delay of 14 days in filing an appeal against the Notice of Decision is a serious and significant failure to comply with the rules.

19. Secondly, I do not find the Applicant’s reasons for late filing acceptable to explain why he filed his Notice of Appeal 14 days late. In all the circumstances, the Applicant would have no good reasons for his breach.

20. Following the 3^rd stage referred to in Begum, I evaluated all the circumstances in this case and arrived at the conclusion that it is fair and just to refuse the Appellant’s application.

21. There were no other matters known to me or revealed by the factual basis of the Applicant’s claim which might amount to special circumstances and which might make it unjust not to allow the late filing of the Notice of Appeal.

22. Accordingly, I refuse the Appellant’s application for late filing of the Notice of Appeal.”

14.  Firstly, while the Board was mathematically correct to determine the delay between the date when the Director’s decision was served on the Applicant’s lawyer on 5 February 2018 and the date when the Applicant filed his Notice of Appeal on 7 March 2018 to amount to 14 days, but it also noted in its decision that the Applicant’s lawyer in fact only served the decision on the Applicant 7 days later on 12 February 2018 at Tong Tau Prison in Stanley where the Applicant was being held, and hence according to Section 37ZS(1) of the Ordinance which stipulates that a person who wishes to appeal against a decision made by the Director must with the Board a notice of appeal within 14 days after notice of the decision is given to the person, and in the Applicant’s case that would mean he should have until 26 February 2018 to file his Notice of Appeal, and hence when he filed his Notice of Appeal on 7 March 2018, the delay was 9 days instead of 14 days as found by the Board, and as such it seems reasonably arguable that such delay may not be regarded as serious or significant.

15.  Secondly, even if the delay were indeed 14 days instead of 9 days as noted above, given the facts that the Applicant was unrepresented and cannot read or write English, and that he was then in Tong Tau Prison where he claimed to have no one to help him with his appeal, and where in any event there would be the inevitable delays with incoming and outgoing mails as well as restrictions or inconvenience in seeking legal assistance, and that after he was released from prison on 2 March 2018 and was transferred to CIC that he did file his Notice of Appeal within 5 days on 7 March 2018, it seems to me also reasonably arguable that it was Wednesbury unreasonable for the Board to find such delay “a serious and significant failure to comply with the rules” or that the Applicant “would have no good reasons for the breach” in light of the circumstances of his case.

16.  In Re Qasim Ali, CACV 547/2018 [2019] HKCA 430, 8 April 2019, where the Board similarly refused to allow the late filing of the appellant’s notice of appeal upon finding the delay of 8 days a serious and significant failure to comply with the rules, the Court of Appeal in allowing the subsequent appeal against the lower court’s decision to refuse to grant leave for judicial review of the Board’s decision held such finding as Wednesbury unreasonable, as Lisa Wong J in giving judgment of the Court elaborated at paragraph 22:

“We are surprised by the findings by the Board that a delay of 8 days was a “serious and significant failure to comply with the rules” and that the applicant would have no good reason for the breach. In our view, it is reasonably arguable that such findings are unreasonable in the Wednesbury sense in light of the circumstances of this case:

(1)  A delay of 8 days cannot, on any view, be regarded as serious or significant.

(2)  In this case, the service of the decision under appeal on the applicant took 6 days.

(3)  The applicant was, to the Board’s knowledge, in prison when he received the Director’s Decision. One can reasonably presume that an applicant in such a situation might or would have to go through more hurdles (if not difficulties) in arranging his affairs. That the applicant could eventually lodge his appeal to the Board in August 2017 (Call-1 Form [42]) is therefore neither here nor there.

(4)  While the applicant had not provided a reason for his delay in section 5 of the appeal form, he had rectified the omission by his said letter dated 23 August 2017 to the Board before the Board exercised its discretion. The explanation was that he was illiterate and could not find anyone educated to help him. The fact that such circumstances might affect a great number of non-refoulement claimants does not render it an untrue or unreasonable explanation for the late appeal. In this regard, we note that the Board did not disbelieve the explanation. Rather, the Board found the given reason “unacceptable” ([19] of the Board’s Decision). We have difficulty with such assessment. The applicant’s inability to read, especially, English would mean that he would not appreciate the notes about the time limit for appeal until he could locate someone who could interpret and explain them to him.”

17.  In the Applicant’s case, the Board also did not disbelieve the Applicant’s explanations, but nevertheless made the same findings under similar circumstances which in my view that the Applicant may also argue as Wednesbury unreasonable.

18.  Furthermore, it seems to me reasonably arguable that the Board had also failed to consider the merits of the Applicant’s appeal as a relevant matter of fact within the Board’s knowledge within the meaning of Section 37ZT(2)(b) of the Ordinance in its decision to refuse the late filing of his Notice of Appeal, as so held to be relevant by the Court of Appeal in Qasim Ali, supra, as Lisa Wong J stated as follows:

“23. Further, as the last of the 3-stage enquiry alluded to in The Secretary of State for the Home Department v Begum, on which the Board had directed itself as [16] of the Board’s Decision, 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 know of.

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 breach 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.”

19.  In the Applicant’s case, it seems from the decision as noted above that the Board also failed to take account of the merits of the appeal as part of the relevant matters of fact within its knowledge required by Section 37ZT(2)(b) of the Ordinance, and if it had done so, it did not give any or sufficient reason why they would not amount to special circumstances that would make it unjust not to allow the late filing of the Applicant’s Notice of Appeal.

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 is reasonably arguable on the grounds that (1) the Board’s findings that the Applicant’s delay was serious and significant and that the Applicant would have no good reason for the breach were Wednesbury unreasonable; and (2) that the Board had failed to take account of the merits of the appeal and/or the substance of the Applicant’s non-refoulement claim as part of the relevant matters of fact within its knowledge under Section 37ZT(2)(b) of the Ordinance, thus meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

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