AZEEM NASIR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1511/2020

[2022] HKCFI 1980

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1511 of 2020

Application for Leave to Apply for Judicial Review

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

Following;

	consideration of documents only;          or
	consideration of documents and Applicant being absent in open court;

Leave for the applicant to apply for Judicial Review within 14 days after this
decision in accordance with Order 53, rule 5 (5) of the RHC be granted.

Observations for the Applicant:

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 8 July 2020 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.  The applicant did not request an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the Court will deal with his application on paper.

The applicant

3.  The applicant is a national of Pakistan. He entered Hong Kong on 14 December 2010 and was granted the dependent visa. His dependent visa was last extended to 2 March 2019. He did not depart nor did he apply for the extension of his dependent visa. He had therefore overstayed since 3 March 2019. On 20 December 2019 and 27 December 2019 respectively, he lodged a non-refoulement claim on the basis that, if refouled, he would be harmed or killed by the members of the Pakistan Tehreek-e-Insaf (“PTI”).

4.  According to the applicant, in around May 2015 to early June 2015, he was involved in a heated political discussion in which some drunken people attacked him and his friend with smashed beer bottles. Both of them sustained injuries. Out of fear, the applicant decided to stay in Hong Kong for protection. Details of his claim are set out at paragraph 6 of the Notice of Decision dated 27 April 2020 by the Director (the “Director’s Decision”).

The Director’s Decision

5.  The Director considered the applicant’s claim in relation to the following risks:

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

c.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

d.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

6.  By way of the Director’s Decision, the Director dismissed the applicant’s claim on the basis that the level of risk of harm upon refoulement was assessed to be low. In elaboration, the Director found that (i) the low intensity and frequency of past ill-treatment indicated an unlikelihood of future risk of harm [11]-[13]; (ii) the state protection would be available to him [14]-[16]; and (iii) internal relocation was a viable alternative [17]-[20].

The Board’s Decision

7.  On 18 May 2020, the applicant filed a notice of appeal/petition against the Director’s Decision to the Board. He was 5 days late [3]. The applicant did not provide any reasons for the delay [9]. As the applicant was detained at the material time, the Board inquired him of the date he received the Director’s Decision from the Duty Lawyer Service and of the reason for the delay. Yet, he did give any reply to the said inquiries [11].

8.  In light of the delay and the applicant’s failure to provide cogent explanations for the delay, the Board refused to allow the late filing of the notice of appeal/petition.

Application for leave to apply for judicial review of the Board’s Decision

9.  The applicant has filed Form 86 dated 16 July 2020 for leave to apply for judicial review of the Board’s Decision.

10.  In his affirmation in support of his application, the applicant said he did not agree with the Board’s Decision and he did not want to return to his country because his life was in danger.

DISCUSSION

11.  The issue for this Court is whether the Board was entitled to refuse extension of time for the applicant to file his notice of appeal under the circumstances as stated in the Board’s Decision.

12.  I note that the Board had resorted to the case of Re Asghar Ivrat HCAL 9/2016 by Hon. Li J. However, this Court of the First Instance judgment has been overridden by the Court of Appeal in in Re Khan Kamal Ahmed [2019] HKCA 377 dated 2 April 2019, which has widened the scope of the Board’s consideration to cover the merits of the applicant’s case, suitably demonstrated in the Director’s Decision, which should be put before the Board. The Court of Appeal held that the Board has to consider the merits even if the applicant is absent or late for the filing of the appeal:

“16. Section 37ZT(3) of the Ordinance gives the Board the discretion to allow the late filing of a notice of appeal if it is satisfied that by reason of special circumstances, it would be unjust not to do so.

17. Where a notice of appeal to is filed out of time, s 37ZT(2) mandates the Board to decide as a preliminary decision without a hearing whether it allows the late filing of the notice of appeal, and in doing so, to take account of “any other relevant matters of fact within the knowledge of the Board” apart from the explanation for the delay.

20. … … it was incumbent upon the Board, in exercise of its discretion to extend time for appeal, to take the merits of the applicant’s case into account regardless of the procedural breaches or the lack of explanation therefor.”

13.  The Board should have the Director’s Decision as it should be submitted by the applicant for his appeal. The Board has to consider the merits of the case by reference to the Director’s Decision, which the Board had failed to do, a procedural impropriety which may render the Board’s Decision to be set aside under the law.

14.  I note that section 37ZT of the Ordinance has been revised and is operative on 1 August 2021. If the matter is remitted to the Board for decision, the Board has to apply the law then existing before the revised version, which does not have retrospective effect.

15.  The applicant has a realistic chance of success of his intended judicial review against the Board’s Decision.

CONCLUSION

16.  Accordingly, I grant leave to the applicant to apply for judicial review within 14 days after this decision in accordance with Order 53, rule 5 (5) of the RHC. The applicant should take the appropriate step to comply with the statutory provision, failing which this Court may take the initiative to enforce compliance.

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