Shabbir Mudassar v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2440/2018

[2020] HKCFI 1282

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2440 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 6 June 2017 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court (“RHC”), the Court, on its own motion, amended Form 86 by deleting the Director of Immigration (“the Director”) to be replaced by the Board as the respondent.

The applicant

3.The applicant is a Pakistani national. On 15 February 2013, he was arrested by police for being an illegal immigrant. He applied to the United Nations High Commissioner for Refugees (“UNHCR”) for asylum. UNHCR requested the Immigration Department to process his application under the Unified Screening Mechanism (“USM”). On 3 March 2014, he agreed to be screened under the USM. On 20 August 2015, he was arrested for possession of a forged identity card, for which he was convicted and sentenced to 18 months’ imprisonment.

4.He claimed that if refouled, he would be subjected to ill-treatments or even life danger posed by some members of the Pakistan Muslim League (N) (“PMLN”).

5.Because of the fact that the Board had not considered the merits of the applicant’s case, I shall therefore briefly summarize the relevant facts as stated in the Director’s Decision for the purpose of consideration of this application. The applicant aspired to be a politician in Pakistan. A person named CH Shahbaz who was influential in his local area belonging to PKLN was unhappy that he did not join his party. He caused threats, harms and life danger to the applicant. There were incidents that his father had a fight with Shahbaz and he was assaulted by 5-6 people armed with guns and choppers; that he was assaulted on another occasion by 5-6 men; that he was threatened with death; that his father was shot dead as a pillion passenger behind him on a motorbike.

The Director’s Decision

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

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

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”).

7.By Notice of Decision dated 25 November 2016, the Director refused his claim for the reason that his claim was not substantiated. The Director took the view that the level of risks was low [24]; state protection [52] and relocation [61] were available to him.

The Board’s Decision

8.The applicant appealed to the Board against the Director’s Decision. However, his Notice of Appeal was filed late. The deadline is on 12 December 2016 and his Notice of Appeal was received by the Board on 2 March 2017 [5]. The Board found that he was 80 days late and it took the view that as the regime was strict, it mattered not whether the delay was about 80 days or whether it was much longer, the applicant was required to establish the special circumstances which would make unjust a refusal to allow the late filing [11].

9.The applicant’s explanation was that he did not receive the Notice of Decision through normal mail [7], with which the Board was not satisfied.

10.The Board’s Secretariat had enquired into the matter on when he received the Notice of Decision and when he was again remanded into custody. The Secretariat required him to reply within 2 weeks. He failed to do so.

11.The Board considered that it could only make the decision based on the applicant’s statements in Section 5 and the enclosed letter. The Board found that the applicant’s statements gave no reasons for his failure to comply with the filing deadline and no special circumstances were set out to explain that failure. No supporting documents were relied on [16].

12.The Board considered that there were no other matters known to it or revealed by the factual basis of the applicant’s claim, which might amount to special circumstances, which would make it unjust to allow the late filing of the appeal. Accordingly, the Board refused the application for late filing of the applicant’s Notice of Appeal [17].

Application for leave to apply for judicial review

13.The applicant filed Form 86 dated 2 November 2018 for leave to apply for judicial review of the Board’s Decision.

14.In his affirmation in support of this application, he said that he was not educated; that he was not provided with legal advice and the Board had not considered his case.

DISCUSSION

15.The Board relied upon section 37 ZT(2) of the Ordinance, viz. the materials which the Board must consider for an application for late filing of the Notice of Appeal. For the present purpose, I shall only consider (iii) any other relevant matters of fact within the knowledge of the Board.

16.The Court of Appeal in Re Khan Kamal Ahmed [2019] HKCA 377, 2 April 2019 held:

“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.”

17.The Board should have received the hearing bundle from the Director. See section 9 of Schedule A of the Ordinance. In the hearing bundle, there must be a written decision of the Director rejecting the applicant’s claim. The facts as found by the Director form part of the relevant matters of fact within the knowledge of the Board.

18.In this case, the Director rejected the facts that the applicant was assaulted and shot and his father was shot dead as factors for his claim under the risks of BOR 3 and Persecution. This may be something the Board should consider whether it was reasonable for the Director to form such opinion. He may be interested in finding the facts by calling upon the applicant for cross-examination, in which case he would extend time for him to file his Notice of Appeal out of time if he considered that not to do so may be unjust to the applicant.

19.In the circumstances, I consider that there is reasonable ground that the applicant may succeed in the proposed application for leave to apply for judicial review of the Board's Decision. Accordingly, I shall grant leave to the applicant for his application for judicial review of the Board’s Decision. The applicant should follow rule 5 of Order 53 RHC to proceed with his application.

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