KAMAL ANWAR v. TORTURE CLAIMS APPEAL BOARD

HCAL 963/2020

[2024] HKCFI 1632

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 963 OF 2020

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 the Applicant in open court;

(1)  Extension of time for the application for leave to apply for Judicial Review be granted;

(2)  Leave for the Applicant to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 21 June 2019 be granted;

(3)  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); and

(4)  The Applicant do serve a copy of the Originating Summons together with all the relevant documents on the Torture Claims Appeal Board as respondent and the Director of Immigration as interested party.

Observations for the Applicant:

1.  The Applicant is a 52-year-old national of Pakistan who entered Hong Kong illegally on 19 May 2009 and was arrested by police on the same day. After he was referred to the Immigration Department for investigation, he raised a torture claim later taken as a non-refoulement claim for protection on the basis that if he returned to Pakistan he would be harmed or killed by his paternal uncle over their property dispute in his home village. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Shorkot Cantt, District Jhang, Pakistan where he inherited his family house after the passing of his parents, but which was coveted by his paternal uncle who had been harassing him to sell the property to him at a much lower price, and when the Applicant refused, his uncle then made death threats against him.

3.  To avoid his uncle’s threats and to look for jobs to make his living, the Applicant in March 2004 went to Faisalabad to work in a garment factory, yet he would continue to receive threatening phone calls from his uncle to press him to sell the property to him.

4.  In July 2004 his uncle then made a false charge against him to the police of stealing money and jewelries from his uncle’s home, for which the Applicant was arrested by the police and was detained for several days for interrogations before subsequently being released on bail when he then returned to Faisalabad to continue with his factory job.

5.  In 2006 the Applicant returned to his home district, but one day while he was in the town market, he was attacked by some unknown men with wooden sticks who later left after being intervened by the crowd.

6.  Some 10 days later the Applicant encountered the same group of unknown men on the street who attacked him again by punching and kicking him all over his body, and before they left they warned the Applicant that next time he would be killed if he still refused to sell his land to his uncle.

7.  As a result the Applicant felt it was no longer safe to remain in Pakistan, and so on 14 May 2009 he departed for China, and from there he later sneaked into Hong Kong, and upon his arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Supplementary Claim Form (“SCF”) on 29 October 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

8.  By a Notice of Decision dated 3 March 2015 the Director of Immigration (“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 Ordinance, Cap 383 (“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”).

9.  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 the risk of harm from his uncle upon his return to Pakistan is real and foreseeable due to the low intensity and frequency of past ill-treatment from his uncle, that there is no evidence of any real intention of his uncle to seriously harm or kill him other than to press him to sell his property to him, that in any event it was a private property dispute between the 2 of them without 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 196 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 areas of the country away from his home district in large cities such as Karachi or Lahore where it would be difficult if not impossible for his uncle to locate him.

10.  On 10 November 2016 the Director on his own initiative invited the Applicant to submit any additional facts which he may consider 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”), and in the absence of any response or reply from him, the Director by a Notice of Further Decision dated 25 November 2016 also rejected the Applicant’s BOR 2 Claim upon finding that he had failed to establish a personal and real risk of his absolute and non-derogable rights under HKBOR including right to life under BOR 2 risk being violated upon his return to Pakistan.

11.  On 21 May 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decisions, but as his Notice of Appeal was found to have been filed outside the 14-day period under Section 37ZS (1) of the Immigration Ordinance, 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 the Notice of Appeal, and by a Decision dated 21 June 2019 the Board refused the Applicant’s late filing of his Notice of Appeal.

12.  In its decision the Board found there were delays of some 3 years as against the Director’s earlier decision and 1 year and 5 months against the further decision, that such delays were inordinate, and that the Applicant had failed to provide any reasonable explanation or special circumstances for such serious delays in lodging his Notice of Appeal to the Board under Section 37ZT (3) of the Ordinance.

13.  On 21 May 2020 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds for his intended challenge:

(1)  That the Board reached the decision wrongly in assessing his non-refoulement claim as the decision was not fair or reasonable as required by the Wednesbury test in failing to recognize that his life must be protected by the criminal law from extra-judicial killings that he may face if deported back to his home country;

(2)  That the Board failed to appreciate or place proper or sufficient weight or importance to the presence of State Acquiescence in his case which led to an unfair outcome of rejecting his claim without realizing that he was tortured at the behest of the state law enforcement agencies and politicians that the state would be rendered liable to the Applicant by cause of the state and its public officials failing to provide reasonable protection for its citizens under the duty of due diligence;

(3)  That the Adjudicator acted unreasonable and was procedurally unfair by placing too much reliance on COI but failed to take into account the Applicant’s personal background and experience in assessing his claim;

(4)  That the Board had listed relevant COI which supported the Applicant’s aversions that the police in her country would not be able to protect but failed to consider or give sufficient weight to such evidence and instead ruled otherwise against the Applicant’s case which was a clear case of unfair attitude shown by the Board which in itself is enough to render its decision void;

(5)  That the Board failed to attain the high standard of fairness required by the Wednesbury test in failing to take into account the Applicant’s argument that corruption and incompetency of the administration in the Applicant’s country is still a very serious problem as various human rights organizations had compiled reports that stated testament to the Applicant’s assertions.

14.  By then the Applicant was however out of time with his application, as Order 53 rule 4(1) of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the day when grounds for the application first arose unless the Court considers that there is good reason to extend the period within which the application shall be made.

15.  As the last day of the three-month period for him to file his Form 86 fell on 21 September 2019, the Applicant was therefore some 8 months late with his application, and in considering whether to extend time, the Court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393.

16.  In the Applicant’s case, a delay of 8 months must be considered as very substantial and inordinate, for which he explained in his supporting affirmation and also at the hearing of his application that he had been arrested for possession of dangerous drugs and was put in prison from 19 December 2019 to 3 April 2020, and hence he never received the Board’s decision in the mail until later when he reported on his recognizance that he was informed by his immigration officer of the decision, but by then he was already seriously out of time with his intended application.

17.  The record shows that the Board’s decision was sent on the same day of 21 June 2019 to his then reported address in Shamshuipo, Kowloon without being returned through undelivered post, and hence he would still have had sufficient time to file his Form 86 before his subsequent arrest and imprisonment, and hence his arrest and imprisonment cannot in my view justify his serious delay.

18.  As for the merits of his intended application, those grounds put forward by the Applicant are in fact not relevant or applicable to his case given the fact that his non-refoulement claim was never assessed or determined by the Board after it had refused the late filing of his Notice of Appeal, and hence I do not find any of these grounds reasonably arguable for his intended challenge.

19.  Nevertheless, given the seriousness of the issue at hand and the implication of the Board’s refusal to allow the late filing of the Applicant’s Notice of Appeal thereby depriving him of the second-tier screening of his non-refoulement claim by the Board under the Unified Screening Mechanism (“USM”) due to a procedural breach, albeit a very serious one, 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 its decision.

20.  The Board’s reasons as set out in its decision are as follows:

“9. The Applicant stated the following as his reason for late filing ‘sir, I have submitted late due to I was not having money with me, I could not move around. Same I have informed in CIC to my case officer on 23/5/18. Sorry for inconvenience caused. Thanks for your guidance.’ Under section 5 of his two NOA forms. A letter was sent to the address he stated in his NOA section 1 H from the Board requesting him to provide special circumstances for the late filing of the NOAs against the Decision and the Further Decision within 7 days of the letter of request of 23 January 2019. No further information was provided to date.

10. The Applicant have failed to provide reasonable explanations of special circumstances in the delay of lodging the NOA to the Board under section 37ZT (3), and the delay of lodging the appeal on both the Decision and the Further Decision of the Director was inordinate. The Applicant has therefore failed to satisfy the requirement of ‘special circumstances’ under paragraph 9 of the Petition Guide and 37ZT of the Ordinance, his application for late filing of the NOA is refused. The applications for the late filing of the NOA are dismissed.”

21.  Firstly, it is clear that that the Applicant was then being detained by the Immigration Department at Castle Peak Bay Immigration Centre (“CIC”) as stated in his Notice of Appeal, a fact of which the Board as noted above was also aware, but it does not appear to have made any attempts to enquire as to when exactly had the Applicant been so detained, or what assistances had been provided to him with the preparation and filing of his Notice of Appeal while being so detained before arriving at its conclusion that his delays had been inordinate.

22.  More significantly, nor did the Board appear to have taken account of the merits of the appeal as part of the relevant matter of facts within its knowledge required by Section 37ZT(2)(b) of the Ordinance, as the law then was, before arriving at its finding of no special circumstances that would make it unjust not to allow the late filing of the Applicant’s Notice of Appeal, which the Court of Appeal has held to be relevant in Re Khan Kamal Ahmed, CACV 563/2018 [2019] HKCA 377, 2 April 2019, and Re Qasim Ali, CACV 547/2018 [2019] HKCA 430, 8 April 2019, of which the Adjudicator would and should have been aware given that these judgments had been delivered for some 2 months before the Board’s decision, and as Lisa Wong J in giving judgment of the Court in the latter case explained:

“23. … 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 knows 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 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.”

Conclusion

23.  In the premises, and for the reasons given above, I am of the view that the Applicant’s intended application for judicial review of the Board’s Decision in refusing to allow the late filing of his Notice of Appeal is reasonably arguable on the grounds (1) that the Board failed to make proper or sufficient inquiries in its finding that the Applicant’s delay in the filing of his Notice of Appeal was inordinate; and (2) that the Board failed to consider the merits of the Applicant’s appeal as part of the relevant matters of fact within its knowledge under Section 37ZT(2)(b) of the Ordinance, thereby meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

24.  Accordingly, I extend time to the Applicant’s late application, and grant leave to him to apply for judicial review of the Board’s decision on the grounds as 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 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