SHABBIR ASIM v. TORTURE CLAIMS APPEAL BOARD

HCAL 1063/2021

[2021] HKCFI 3093

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1063 of 2021

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.  extension of time for the application for leave to apply for Judicial Review of the decisions of Torture Claims Appeal Board dated 24 December 2015 and 10 January 2020 respectively granted; and

2.  leave to apply for Judicial Review granted.

Observations for the Applicant:

1.  The Applicant is a 38-year-old national of Pakistan who entered Hong Kong illegally one day in late June 2007 and was arrested by police on 24 February 2008. After he was referred to the Immigration Department for investigation, he raised a torture claim later taken as a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed in revenge by the family of his neighbor killed by his brother during a dispute and/or by the police over certain charges brought by that family against him. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Mohallah Baker Qasaban, Jalal Pur Jattan, District Gujrat, Punjab, Pakistan where he worked as a painter.

3.  One day in April 2007 he and his brother had a heated quarrel with their neighbor Bilal during which the Applicant’s brother and Bilal pulled out their guns and fired at each other that Bilal was injured in the leg. Thereafter the Applicant and his brother fled from the home village for 2 weeks before returning to attend a reconciliation meeting between the two families arranged by a fellow villager as mediator.

4.  However, during that meeting heated quarrels again broke out when some members from both sides took out their guns and shot at each other when the Applicant’s brother shot dead Bilal and then fled from the scene before the police arrived. Fearing that Bilal’s family might seek revenge against him, the Applicant also fled to the town of Bhimber, and when he later heard that Bilal’s family had made false charges against him to the police, the Applicant on 17 June 2007 departed Pakistan 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 Non-refoulement Claim Form (“NCF”) on 23 September 2014 with legal representation from the Duty Lawyer Service (“DLS”) but failed to attend any screening interviews by an immigration officer without explanation.      

5.  By a Notice of Decision dated 17 February 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 (“Ordinance”) (“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”).

6.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from Bilal’s family upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from them, that it was a private personal dispute between them without any official involvement that state or police protection would be available to the Applicant if resorted to, that there was no evidence of any police action against the Applicant given the fact that he was able to leave Pakistan without problem, 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 193 million people spread across a vast territory of about 800,000 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 Pakistan away from his home district in large cities such as Karachi where it would be difficult if not impossible for Bilal’s family to locate him.

7.  On 28 April 2015 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but as his Notice of Appeal was filed outside the 14-day period required by Section 37ZS(1) of the Immigration Ordinance, the Board pursuant to Section 37ZT(2) proceeded to determine as a preliminary decision without a hearing whether to allow the late filing of the Applicant’s Notice of Appeal, and by a written notice of decision dated 24 December 2015 (“Board’s First Decision”), the Board refused to allow the late filing of the Applicant’s Notice of Appeal.

8.  In its decision the Board found that the Director’s decision had been delivered on the same day to the Applicant by post, that the 14-day period for him to file his Notice of Appeal ended on 5 March 2015, that the Applicant was therefore more than 7 weeks late with his Notice of Appeal, that his explanation of having a back pain and moved to his friend’s place without informing the Director was unacceptable, and that there was no obvious or exceptional reason for allowing the late filing of his Notice of Appeal.     

9.  Meanwhile on 16 January 2017 the Director on his own initiative in writing invited the Applicant to submit additional facts which may be relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 Risk”), and in the absence of any response from him, the Director by a Notice of Further Decision dated 8 February 2017 rejected the Applicant’s claim under BOR 2 Risk 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 being violated upon his return to Pakistan.

10.  On 28 April 2017 the Applicant again lodged an appeal to the Board against this Further Decision of the Director, but again his Notice of Appeal was not filed within the required 14-day period of the receipt of the Director’s decision, and again in pursuance of Section 37ZT(2) of the Ordinance the Board proceeded to determine as a preliminary decision without a hearing whether to allow the late filing of the Applicant’s Notice of Appeal.

11.  By a Decision dated 10 January 2020 (“Board’s Second Decision”) the Board found the 14-day period for the Applicant to file his Notice of Appeal to have ended on 24 February 2017, that the Applicant had been more than 2 months late with his Notice of Appeal but for which he had not provided any explanation, and that there was no special circumstances which would make it unjust not to allow the late filing of his Notice of Appeal, and therefore refused to allow the late filing of his Notice of Appeal.      

12.  On 27 July 2021 the Applicant filed his Form 86 for leave to apply for judicial review of this Second Decision of the Board, and in his supporting affirmation of the same date he simply stated that the Director and the Board decided wrongly in their assessment of his non-refoulement claim.

13.  By then the Applicant was however also out of time with his leave 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 date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.

14.  As the last day of the three-month period for him to file his Form 86 for his intended challenge of the Board’s Second Decision fell on 10 April 2020, the Applicant was therefore more than 15 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.

15.  In the Applicant’s case, a delay of more than 15 months must be considered as extremely substantial, for which he did not provide any explanation in his Form or supporting affirmation, and as the record shows that the decision was sent to him on 10 January 2020 at the Castle Peak Bay Immigration Centre (“CIC”) where he was then being detained, and even taken into account of the inevitable delay caused by restrictions on incoming and outgoing mails for inmates detained there and on the inconvenience of accessing legal assistance, I still fail to see any good reason for such serious delay with the Applicant’s application.

16.  As for the merits of his intended application, as noted above, the Applicant did not provide any details or particulars to support his complaint that the Director or the Board had wrongly assessed his non-refoulement claim, when the fact is that the Board’s Second Decision was to refuse the late filing of his appeal rather than to assess his non-refoulement claim, but as will be apparent below, that may well be a valid point in the Applicant’s complaint. In any event, the Court will adopt an enhanced standard in scrutinizing the Board’s Decision in view of the seriousness of the issue at hand and which has the consequence of denying the Applicant of his right to the second-tier screening process of his non-refoulement claim by the Board under the Unified Screening Mechanism (“USM”).

17.  Before proceeding to scrutinize the Board’s reasons for refusing to allow the late filing of the Applicant’s Notice of Appeal, it would be relevant to first remind myself of the relevant provisions under Section 37ZT of the Ordinance:

“(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 of appeal 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.”   

18.  In its Second Decision in refusing to allow the late filing of the Applicant’s Notice of Appeal, which I note was handed down some 35 months later, the Board found the Applicant to have failed to give any reason for his late filing or to provide any documents in support, and hence there was no reason for it to consider, and proceeded to state its conclusion as follows:

“8. For the strength of the grounds of appeal/petition, it is only a factor to consider if there are reasons for the late application. Presently I do not have sufficient documents or information to decide his grounds of appeal/petition and it is not appropriate to consider the strength of his grounds of appeal/petition.

9. I also had considered if there is any obvious and or quite exceptional reason for allowing the application for the late filing of the Notice. I find in all the circumstances there is no reason to allow and there is not unjust of not allow the late filing of the Notice. I, therefore, refused the application for late filing of the Notice.”

19.  While the Board was certainly correct to find that the Applicant had not provided any reason for the late filing of his Notice of Appeal, I fail to see the basis for it to state that it had no sufficient documents or information to decide on the Applicant’s grounds of appeal when it is plain that the Applicant had already set them out on pages 4 – 5 in Section 2 of his Notice of Appeal, of which are clearly matters of fact within the knowledge of the Board to be taken account within the meaning of Section 37ZT(2)(b) of the Ordinance, and that their merits have been held to be relevant by the Court of Appeal in Re Qasim Ali, CACV 547/2018 [2019] HKCA 430, as Lisa Wong J in giving judgment of the Court 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.”         

20.  In the present case, while the Board did refer to the merits, or as the Adjudicator put it, the strength of the Applicant’s appeal, but somehow it ruled itself out of their consideration by stating that “it is only a factor to consider if there are reasons for the late application”, of which it is clearly wrong in law and contrary to Section 37ZT(2)(b) of the Ordinance and the Court of Appeal’s decision in Re Qasim Ali referred to above, and that in refusing to allow the late filing of the Applicant’s Notice of Appeal, which was essentially to challenge the Director’s decision in rejecting his BOR 2 claim, the implication of the Board’s decision goes further than that, as the basis for his BOR 2 claim is clearly premised on the same set of facts relied upon by the Applicant for his non-refoulement claim under the other applicable grounds including torture risk, BOR 3 risk and persecution risk, but of which the Board never made any findings in its First Decision when it also refused to allow the late filing of the Applicant’s Notice of Appeal against the first decision of the Director in rejecting his claim under those grounds, and in doing so the Board also failed to take account of the merits of that proposed appeal of the Applicant.

21.  In that First Decision of the Board, in its determination of the late filing of the Applicant’s Notice of Appeal, it also stated in [8] that from the available information it was not in a position to consider the strength of the grounds of appeal, but of which the Applicant did set out on pages 4 and 5 of section 2 of his Notice of Appeal and but which the Board again did not take into account or consideration.      

22.  In the premises, and for the reasons given, I am of the view that it is reasonably arguable that in both its decisions not to allow the late filing of the Applicant’s Notices of Appeal, the Board had on both occasions failed to take account of all the relevant matters of fact within its knowledge including the merits of either of the Applicant’s appeals within the meaning of Section 37ZT(2) of the Ordinance, thus meeting the threshold for leave to be granted to apply for judicial review as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.  

23.  Accordingly, I extend time for the Applicant to do so as regard both decisions of the Board, and grant leave for him to apply for judicial review of the Board’s First Decision and Second Decision on the same ground as stated above, and direct that he shall file the originating summons within 14 days of this decision, and also 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