Rafiq Athar v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2430/2018

[2020] HKCFI 1276

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2430 of 2018

BETWEEN

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

Order by Deputy High Court Judge K.W. Lung:    

Leave to apply for Judicial Review be granted.

Observations for the Applicant:

THE APPLICATION

1.This is the applicant’s application for leave to apply for judicial review of the Decision dated 24 May 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant is not legally represented and he did not request an oral hearing. In the course of hearing similar applications, this Court discovered that most of the applicants appearing in person had no idea of the purpose of judicial review, which is for this Court to examine whether they had had a fair hearing at the Board. They asked the Court to re-examine the facts of the case. The Court will not re-examine the facts in support of the claim. See Re Ali Haider CACV 8/2018, [2018] HKCA 222 at §§ 13 & 14. The Court therefore, pursuant to Order 1B, rule 1 (2)(c) of the Rules of the High Court, by letter, invited the applicant to appear before it in order to explain the above to them. At the same time, the Court will examine if the parties in Form 86 are correct. The Court will also see if there are any further grounds in support of the application. In response to the Court’s invitation, the applicant did not attend the hearing scheduled on 14 January 2020. I shall proceed to consider his application on paper.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 was amended by adding the Board as proposed respondent and the Director of Immigration (“the Director”) as interested party.

The applicant

4.The applicant is a Pakistani national. He came to Hong Kong on 25 July 2009 illegally and was arrested by police on 26 July 2009. He raised a torture claim protection on 1 August 2009, but subsequently took no further action. On 12 November 2016, he lodged a non-refoulement claim by written representation.

5.He claimed that if refouled, he would be harmed or even killed by the Sunni Muslims, due to religious dispute.

6.The applicant came from a Sunni Muslims family. However, he converted to Shia Muslims in 2008. He had argument with his family over whether he should convert back to Sunni Muslims. The majority of the village in which he lived was Sunni Muslims. They knew about his conversion and they threatened him to convert back to Sunni Muslims. He refused to do so. One night in March 2009, whilst he was sleeping on the rooftop of the Shia workshop, he was attacked by four masked men with gun and knife. As a result, he was stabbed on his right shoulder, left side of his back, his thighs and his upper left shin, with swelling all over his body. He felt unconscious. When he gained consciousness, he found himself in a hospital where he had stayed for three days. He had to stay in hospital for 21 days. He considered that those men who had attacked him were the Sunni Muslims. He decided to leave Pakistan for China and from China, he came to Hong Kong for asylum.

The Director’s Decision

7.The Director considered his application in relation to the following risks:

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

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

8.By Notice of Decision dated 26 January 2017, the Director refused his claim for the reason that his claim was not substantiated. The Director took the view that the level of risk if he returned to Pakistan was low [12]; that state protection was available to him [18] and internal relocation was an option open to him [19]. His claim under BOR 2 risk was not established.

The Board’s Decision

9.The applicant appealed to the Board against the Director’s Decisions. However, his application was late for 7 months and 1 week as according to the Board.

10.The applicant’s explanation for being late was that he had abused drugs and he did not have a home or mobile telephone. Also, he was sent to jail on 27 June. He was only informed of the matter by his case officer in CIC on 31 August that his non-refoulement claim had been refused. See paragraph 13 of the Board’s Decision. The Board was not satisfied with his explanations

11.The Board applied section 37ZT of the Ordinance to his case. The Board further considered the case of the United Kingdom, The Secretary of State for the Home Department v Begum [2016] EWCA Civ 122. The Court of Appeal in this case considered three stages for the application:

a.     seriousness or significance of the delay;

b.     any good explanation for the delay; and

c.     all the circumstances of the case, applying the two factors in CPR rule 3.9, i.e. (a) the need for litigation to be conducted efficiently and at proportionate cost, and (b) the need to enforce compliance with rules, practice directions and court orders.

12.Having considered the above factors, the Board was not satisfied that there were special circumstances pursuant to section 37ZT(3) of the Ordinance to extend time for the applicant to file his Notice of appeal and it refused to extend time for the applicant to file his Notice of Appeal.

Application for leave to apply for judicial review

13.The applicant filed Form 86 on 1 November 2018 for leave to apply for judicial review of the Board’s Decision.

14.In his affirmation in support of his application, he did not set out any grounds in support of his application. He did not say what error the Board had committed in coming to its decision.

DISCUSSION

15.The applicant is again late to file his application for leave to apply for judicial review. The Board’s Decision is dated 24 May 2018 and the filing date of his application is 1 November 2018. He is more than two months’ late.

16.I have to consider whether time should be extended for him to file his application and in making this determination, I have to consider the merits of his intended application. See Re Kwok Cheuk Kin v Leung Chun Ying [2018] HKCA 419, 23 July 2018, §28 and AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015.

17.The Court of Final Appeal in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 held at §§43-45:

“43. The question in this appeal concerns the standards of fairness that must be observed by the Secretary in determining in accordance with the policy the potential deportee’s claim that he would be subjected to torture if returned to the country concerned. One is concerned with procedural fairness and there is of course no universal set of standards which are applicable to all situations. What are the appropriate standards of fairness depends on an examination of all aspects relating to the decision in question, including its context and its nature and subject matter: R v Home Secretary, Ex parte Doody [1994] 1 AC 531 at 560 D-G.

44. Here, the context is the exercise of the power to deport. The determination of the potential deportee’s torture claim by the Secretary in accordance with the policy is plainly one of momentous importance to the individual concerned. To him, life and limb are in jeopardy and his fundamental human right not to be subjected to torture is involved. Accordingly, high standards of fairness must be demanded in the making of such a determination.

45.     It is for the Secretary to make such a determination.  The courts should not usurp that official’s responsibility. But having regard to the gravity of what is at stake, the courts will on judicial review subject the Secretary’s determination to rigorous examination and anxious scrutiny to ensure that the required high standards of fairness have been met.  R v Home Secretary, Ex parte Bugdaycay [1987] 1 AC 514 at 531 E-G.  If the courts decide that they have not been met, the determination will be held to have been made unlawfully.”

18.There are two observations in this case.

19.First, CPR rule 3.9 of the UK practice does not apply in Hong Kong. CPR and Civil Justice Reform (“CJR”) in Hong Kong are not identical, at least the objectives, one being overriding and the other underlying. More importantly, Order 1A, rule 2(2) provides:

“In giving effect to the underlying objectives of these rules, the Court shall always recognize that the primary aim in exercising the powers of the Court is to secure the just resolution of disputes in accordance with the substantive rights of the parties.”

20.Second, the Court of Appeal in Re Khan Kamal Ahmed [2019] HKCA 377, 2 April 2019 held:

“8. If the application for appeal to the Board is late, the applicant has to apply for late filing of the notice, with reasons in support of the application. …

17. Where a notice of appeal 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.

18. Where there is a serious or significant breach for which no good reason is given, the decision maker moves to evaluate all the circumstances of the case with a view to dealing justly with the application. …

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.”

21.Although the Adjudicator said in the Board’s Decision that he had considered all the circumstances, there is no evidence to show that he had considered the way the Director had dealt with the applicant’s case, in particular, whether, in his opinion, the Director was reasonable to say that the level of risk was low if he returned to Pakistan. I can only discern that by saying that he had considered all the circumstances, he meant that those circumstances in relation to the reason for his being late in filing his appeal to the Board only.

22.I find that it is at least arguable that the applicant may succeed in his application for judicial review of the Board’s Decision.

CONCLUSION

23.I therefore extend time for him to file Form 86 and grant leave to the applicant to apply for judicial review. The applicant should take out the application in accordance with Order 53, rule 5 of the Rules of the High Court.

Dated the 23^rd day of June 2020

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