ALI ASGHAR v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 1162/2018

[2019] HKCFI 2667

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1162 of 2018

 Application for Leave to Apply for Judicial Review

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

Following:

1.  Leave be granted to the applicant to apply for judicial review of the Torture Claims Appeal Board ("the Board")'s decision dated 8 June 2018 based on the ground stated in the Form Call-1..

It is further directed that:

2.   The Applicant shall file an originating summons within 14 days of the order herein and to serve a copy with all the relevant documents on the Board as the first respondent and the Director of Immigration as the second respondent.

Observations for the Applicant:

1.  The Applicant is a 39-year-old national of Pakistan and a Sunni Muslim who entered Hong Kong illegally on 2 March 2008 and was arrested by police on 23 March 2008.  After he was referred to the Immigration Department for investigation, he raised a torture claim on the basis that if he returned to Pakistan he would be harmed or killed by certain Shia Muslims in his home village over religious disputes.  He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised as a Sunni Muslim in Kot Hidayat, Tehsil Nankana, District Sheikhupura, Punjab, Pakistan where the majority of the population in his home village were Shia Muslims, and some of them had demanded that the Applicant and his brother should convert to be Shias so as to follow their Islamic practices.

3.  In 2005 the situation became worse when those Shia Muslims made false charges to the police against the Applicant’s family and to gather outside their home shooting their guns into the air scaring his family.  Eventually the Applicant’s family moved out of the village to take shelter at the Applicant’s grandparents’ place in the neighbouring village.

4.  However, in 2006 when the Applicant heard that those Shia Muslims from his home village were looking for him everywhere, he felt it was no longer safe to remain in Pakistan,and so on 19 August 2007 he departed for China, and from there he later sneaked into Hong Kong and raised his torture claim with the Immigration Department, for which he completed a Torture Claim Form on 6 June 2013 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

5.  By a Notice of Decision dated 17 October 2013 the Director of Immigration (“the Director”) rejected the Applicant’s torture claim under Part VIIC of the Immigration Ordinance, Cap 115 upon finding no evidence of any official involvement in the alleged threats or ill-treatments from those Shia Muslims in his home village against the Applicant, and that there were inconsistency in his account of events occurred prior to his departure from Pakistan that his evidence was found to be not credible that his torture claim was rejected.

6.  On 4 November 2013 the Applicant by way of a written signification to the Director indicated his intention to apply for “CIDTP” which was taken as a non-refoulement claim on applicable grounds other than the already rejected torture risk, including risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“BOR 3 risk”) and persecution risk with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“persecution risk”).

7.  However, before he was requested to complete his Non-refoulement Claim Form to provide details of his claim to the Immigration Department for assessment, the Applicant on 14 March 2016 wrote to the Department to request to withdraw his non-refoulement claim because it was safe for him to return to Pakistan.

8.  By a letter dated 16 March 2016 the Department acknowledged the Applicant’s request to withdraw his claim and confirmed that no further action would be taken in his claim.

9.  Seven months later on 27 October 2016, the Applicant in writing to the Department requested to re-open his claim because he was told by his family that his enemies were still after him as they refused to reconcile.

10.  By a letter dated 10 November 2016 the Department requested the Applicant to provide information and evidence in writing within 14 days by 24 November 2016 for the Director’s consideration of his request to re-open his claim.

11.  As no such information was received by the Department, by a Notice of Decision dated 9 February 2017 the Director refused to re-open the Applicant’s non-refoulement claim upon finding that he had failed to provide any information or evidence to show any change of circumstances that could reasonably have been foreseen by him when he gave his notice of withdrawal of his claim or when taken together with the material previously submitted for his claim could increase the prospect of success of his claim, nor was there any special circumstances by reason of which that it would be unjust not to re-open his claim.

12.  On 16 January 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, but as section 37ZS of Part VIIC of the Immigration Ordinance, Cap 115 requires that the notice of appeal must be filed within 14 days after notice of the Director’s decision has been given to an applicant unless late filing is allowed by the Board, and as the 14-day period for the Applicant to do so plus two days for postal service ended on 25 February 2017, the Applicant was therefore more than 11 months late with his notice of appeal, for which he gave the following statement of reasons in section 5 of his Notice of Appeal:

“ U send me this letter 7^th month but that m in Lai Chi Kok jail when he release me then he ask me your case finished. So this time I want to admit the Appeal. Thanks.” [sic]

13.  In considering whether to allow the late filing of the notice of appeal, section 37ZT(2) of the Ordinance provides that the Board must decide as a preliminary decision without a hearing, and in doing so it 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.

14.  Subsection (3) also provides that if the 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 and by a written notice inform the applicant of its decision, and if it does not allow the late filing, it must also by a written notice inform the applicant accordingly.

15.  In pursuant thereto, the Board by a Notice of Decision dated 8 June 2018 refused to allow the late filing of the Applicant’s Notice of Appeal upon finding his explanation incomprehensible and in no way explains a delay of almost one year in filing his Notice of Appeal, as according to the Immigration Department, while he was arrested on 20 July 2017 for the offence of taking employment without permission, he was subsequently acquitted of the offence in October 2017 with no further detention record in 2017 ([16]).

16.  On 21 June 2018 the Applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

 (1) that the Director failed to appreciate or give proper importance or weight to the presence of state acquiescence in the Applicant’s case which has led to an unfair outcome of rejecting his non-refoulement claim;

 (2) that the Director failed to take account of the Applicant’s argument that he was tortured at the behest of and in full collusion of the police and the state law enforcement agencies that the state should 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 Director failed to consider or give sufficient weight to those relevant COI which support the Applicant’s aversions that the police in his home country would not be able to protect;

 (4) that the Director only relied on those COI which suited his preconceived conclusion which was a clear case of unfair attitude against the Applicant thus rendering his decision void;

 (5) that the Director failed to take into account that corruption and incompetency of the administration in the Applicant’s home country is still a very serious problem as reported by the various human rights organizations which supported his claim;

 (6) that the Director failed to attain high standards of fairness as required by the Wednesbury test in his decision which would be considered as unreasonable in the scope of public law;

 (7) that the adjudicator failed to make sufficient enquiry before finalizing his decision;and

 (8) that the adjudicator failed to give sufficient chance to the Applicant to arrange relevant evidence for his non-refoulement claim as well as his appeal while being detained at the immigration detention centre.  

17.  All these complaints however appear to me just some broad and vague assertions of another person’s case just copied onto the Applicant’s affirmation, as most of them seem to me not applicable or relevant to his intended challenge of the Board’s refusal to allow the late filing of his Notice of Appeal. 

18.  Nevertheless, the Court will adopt an enhanced standard in scrutinizing the decision of the Board in view of the seriousness of the issues at hand, of which I shall proceed to do regarding the Board’s reasons for refusing to allow the Applicant’s late Notice of Appeal.  

19.  Given the fact that a delay of more than 11 months in the Applicant’s case must be considered as very substantial, and the way in which the Applicant presented his reasons for the delay, I agree that the adjudicator was entitled to find them incomprehensible, and for it to reject them upon ascertaining from the Immigration Department as to his detention record during the material time, as he explained in his decision as follows:

“ 17. The Board has evaluated all the circumstances of this application in accordance with the applicable legal provisions, especially section 37ZV(3) of the Ordinance, bearing in mind the principles stated in SSHD v Begum. Those principles are that there is a need to enforce compliance with rules as set out in the Ordinance; and the need for this type of application to be conducted efficiently and at proportionate cost.

18. The Board does not accept that the Appellant’s reasons are sufficient to explain the delay in lodging his Notice of Appeal and notes that it is conclusively presumed by law that he received the Notice of Decision in time. The Appellant’s detention is not an answer to the late filing as he received the Notice of Decision in February and was detained in July. In addition, the Appellant was released in October but still did not lodge his Notice of Appeal until January the following year. These delays are not explained. The Board is not satisfied that any special circumstances pursuant to section 37ZT(3) of the Ordinance have been shown.

19. The late filing of the Notice of Appeal is disallowed pursuant to section 37ZT(4) of the Ordinance.”

20.  However, the Board did not appear to have taken account of the merits of the Applicant’s appeal in its decision not to allow the late filing of his Notice of Appeal, as the Court of Appeal has held in Re Qasim Ali [2019] HKCA 430, 8 April 2019, that since 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, in identifying what circumstances are relevant, the Board should take account of the merits of the appeal regardless of the procedural breaches or the lack of explanation therefor: [26].

21.  In the present case, the Board did not appear to have done so regarding the merits of the Applicant’s appeal when it refused to allow his late filing, notwithstanding that he did put forward the following grounds of appeal in section 2 of his Notice of Appeal which the Board should have taken account of:

“ I want to appeal to reopen my case because I cannot go back because of the terrible situation in my home town. My uncle and my cousin fought with me when I was in Pakistan. They attacked my dad. They shoot my dad because of what he died. And when they came to know that I was coming back again the, my mother told me that they came to my house to threaten my mom saying that they will kill me if I come back. This is why I cannot go back. And I think that Immigration Officer did not read all the grounds and he did not understaod the situation. Moreover, I am the younger male for whom my mom is really concerned and because of my decision of going back her health conditions got worse. It will be a favour on me if you could please help me out of this by letting me stay over here at least till everything get settle.” [sic]

22.  It is therefore in my view reasonably arguable that the Board failed to take account of any of the above in its consideration of the merits of the Applicant’s appeal, albeit on paper, in deciding whether they would constitute circumstances that it would be unjust not to allow the late filing of his Notice of Appeal, thus having met the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

23.  Accordingly, I grant leave to the Applicant to apply for judicial review of the Board’s decision based on the ground stated above, and direct that he shall file an originating summons within 14 days of this decision, and to serve a copy with all the relevant documents on the Board as the first respondent and the Director as the second respondent.

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