RE AR

HCAL 29/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 29 OF 2013

____________

____________

______________

J U D G M E N T

______________

1. This is an application for leave to commence judicial review against the Torture Claims Appeal Board for its refusal of the applicant’s application for late filing of his Notice of Appeal. The applicant intended to appeal to the Appeal Board against the determination of the Director of Immigration dated 24 December 2012 refusing his torture claim under section 37ZI of the Immigration Ordinance, Cap 115. The refusal of the Appeal Board was conveyed by a letter of the Appeal Board dated 28 January 2013.

2. The applicant provided in his application a copy of the director’s determination dated 24 December 2012 and a few medical appointment chits issued by Kwong Wah Hospital to his step-father.  The appointment chits do not disclose anything urgent.  The court then directed the Appeal Board to make an initial response to the application. 

3. The Appeal Board on 19 February 2013 filed with the court a copy each of the applicant’s Notice of Appeal dated 14 January 2013, an acknowledgement by the Appeal Board of the Notice of Appeal, the Appeal Board’s reply form refusing the late filing of the Notice of Appeal and dated 26 January 2013 and a note of the reasons of refusal made by the chairperson of the Appeal Board Ms. Betty Kwan dated 26 January 2013 and kept on the applicant’s file with the Appeal Board.

4. The court then directed the applicant to respond to and comment on the documents filed by the Appeal Board.  However, the address provided by the applicant in the application, which has been used by the Appeal Board in the letter of refusal, does not appear to be correct.  Two letters addressed to the applicant and contained the court’s direction and copies of the documents filed by the Appeal Board have been returned by the Post Office on the ground that there is no such address.  Hence, this decision is made on the basis of all the information contained in the documents filed with the application and those filed by the Appeal Board but without the benefit of any response or comment by the applicant to the documents filed by the Appeal Board.

5. The applicant is from Pakistan.  He claimed that his step-father was a Muslim but changed faith to Christianity at sometime between 2003 and 2005.  This had become known in the place where he lived.  One day in 2005, there were four persons, who were powerful and rich, demanded him to choose between following his step-father in believing in Christianity or remain as a Muslim.  One of these persons was a big gangster.  The applicant said he would follow his step-father. 

6. On the next day, the gangster together with five to six males attacked him with sticks.  He was injured in his head and suffered a fractured left arm.  Some passersby took him to a hospital for medical treatment and he stayed there for three days.  He was discharged with a plastered arm.  He thought the police would side with those four persons as they were rich.

7. In the next evening when he went to a mansion to take care of his buffalo and goat, someone fired three gun shots at him with one got very close to him.  He and his mother were scared and his mother gave him some money for him to leave the country.  He left his country on the next day with his passport.  He did not consider moving to other parts of his country as all Muslims would kill him wherever he went.

8. He had some bad experience with the police a few months before this incident.  He said he was falsely accused of robbery by one of those four persons.  He was arrested and detained by the police for a day. He only secured his release by paying 2,000 rupees bride to the police despite his innocence.

9. He was arrested in Hong Kong on 22 July 2006 for failing to produce any document of identity.  He alleged that he had sneaked into Hong Kong from the mainland on 12 January 2006.  He had a previous record of overstaying in Hong Kong and was removed to Pakistan on 15 June 2003 under a removal order.

10. On 28 July 2006, he lodged his torture claim and was released on recognizance on 2 November 2006.

11. On 29 April 2012, he was arrested by the police for criminal intimidation and possession of offensive weapon.  On 13 June 2012, he was convicted of these offences and sentenced to three months imprisonment suspended for 15 months.

12. Section 37ZI, sub-sections (3) and (4) provide for the acceptance and rejection of a torture claim as follows:

“(3) Atorture claim must be accepted as substantiated if there are substantial grounds for believing that the claimant would be in danger of being subjected to torture if the claimant were removed or surrendered to a torture risk State.

(4) A torture claim must be rejected in the absence of the substantial grounds for belief referred to in subsection (3).”

Torture is defined in section 37U(1) as follows:

“37U (1) torture (酷刑) means an act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person—

(a) for such purposes as—

(i) obtaining from that person or a third person information or a confession;

(ii) punishing that person for an act which that person or a third person has committed or is suspected of having committed; or

(iii) intimidating or coercing that person or a third person; or

(b) for any reason based on discrimination of any kind,

when such pain or suffering is inflicted by, or at the instigation of, or with the consent or acquiescence of, a public official or other person acting in an official capacity, excluding pain or suffering arising only from, inherent in or incidental to lawful sanctions.”

13. Though the applicant claimed that the police in his country would side with the four persons who were against him, he has no evidence to support this claim save his words.  Though most policemen in Pakistan are Muslims, that is not a basis for saying that the police in Pakistan will act against him.  There are over 2,000,000 of Christians in Pakistan.

14. Apart from his unsupported assertion against the Pakistani police, there is nothing in his claim that can indicate that his alleged pain, suffering or gunshot attack was inflicted by or at the instigation of or with the consent or acquiescence of any public official or person acting in official capacity.  The director therefore cannot be faulted in determining against his torture claim. 

15. Regarding his late filing of the Notice of Appeal, he said in the notice that he had lost his phone and officers of the CAT Claim Office of the Duty Lawyer Service could not have advised him of the director’s refusal by phone.  He only learnt of the refusal when he got it by post.  Hence, he was late in filing his Notice of Appeal.  However, as pointed out in the note of Ms. Betty Kwan, the applicant should have called up the officers of the CAT Claim Office frequently to enquire the result of his claim.  He should not have just waited for the CAT claim Office to post the director’s decision to him. 

16. Since the applicant’s CAT claim has no merit, the Appeal Board was entitled to reject the application for late filing of the Notice of Appeal under section 37ZT of the Ordinance.  There is no ground in this application for leave to commence judicial review against the Appeal Board.

17. I therefore dismiss the application.