Khan Yasir v. Torture Claims Appeal Board

HCAL 1094/2018

[2021] HKCFI 1648

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1094 of 2018

BETWEEN

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 the Applicant in open court;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review granted.

Observations for the Applicant:

1.The Applicant is a 26-year-old national of Pakistan who entered Hong Kong illegally on 26 January 2016 and surrendered to the Immigration Department on 7 March 2016 when he raised a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed by members of the political party Pakistan Muslim League (N) (“PML(N)”) for leaving their party to support the rival party Pakistan Tehreek-e-Insaf (“PTI”). He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Village Yasin Kalan, Attock, Punjab, Pakistan. After leaving school he followed his family’s tradition to support PML(N) regularly participating in their political activities and election campaigns.

3.However, over the years he and his family became disappointed with PML(N)’s policies, and in 2014 they started to support their rival party PTI and assisted one of their candidates to win the local election.

4.Thereafter some PML(N) people approached the Applicant’s father to demand for loyalty of his family, and threatened to harm him and his family if they failed to show their support for PML(N) in the next election.

5.One day in January 2016 while he was on his way to the village town, the Applicant was ambushed by several PML(N) people who assaulted him with hockey sticks that his head was struck and was bleeding that later required medical treatments.

6.After the assault the Applicant became fearful for his life, and was advised by his father to leave Pakistan, and so on 24 January 2016 he departed for China, and from there he later sneaked into Hong Kong and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 15 June 2017 and attended a screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

7.Whilst being released on recognizance pending determination of his claim, the Applicant was arrested by the police on 12 January 2017 for undertaking unauthorized employment for which he was subsequently convicted and sentenced to prison for 14 months.     

8.By a Notice of Decision dated 31 July 2017 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Ordinance”) (“Torture Risk”), risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of 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”).

9.In his decision the Director took into account all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from the PML(N) people upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence that they have been looking for him since his departure from Pakistan, that in the absence of any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) shows that reasonable internal relocation alternatives are available in Pakistan with a large population of 201 million people spread across a vast territory of more than 796,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied young man to move to other parts of Pakistan away from his home district in large cities such as Lahore or Islamabad where it would be difficult if not impossible for the PML(N) people to locate him.

10.The Applicant then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s Decision, but as his Notice of Appeal was received by the Board on 17 August 2017 which was found to be outside the 14-day period required for filing under Section 37ZS(1) of the Immigration Ordinance, for which the Applicant did include in Section 5 of his Notice of Appeal an application for its late filing alleging that he was given the Director’s Decision by his lawyer from DLS very late, that there was an intervening holiday, and that he had been to the Queen Mary Hospital (presumably for treatment).

11.It would further be of note that in his Notice of Appeal the Applicant gave his address at the Tong Fuk Correctional Institution, and in Section 2(B) for Grounds of Appeal/Petition, he also set out in two pages his complaints against the Director’s decision in rejecting his non-refoulement claim.

12.The Board proceeded to decide, without a hearing, whether to allow the late filing of the Applicant’s Notice of Appeal, and by a written notice dated 18 May 2018 it refused the Applicant’s application for late failing.

13.In its decision the Board found the regime governing late filing is strict, that the Applicant’s Notice of Appeal was late by one day but for which he failed to provide any further or sufficient information or documentary evidence in support of his given reasons, and that it was not satisfied that there were any special circumstances to justify the late filing of his Notice of Appeal, as it elaborated in its consideration as follows:

“10.  The Appellant was informed of his right to appeal/petition against the Decision within the time limit requirement in the Notice of Decision which enclosed a prescribed form of notice of appeal. In the prescribed form, his attention was also drawn, inter alia, about the time limit requirement and the duty to provide a statement of reasons for late filing and other supporting documents relied upon (if any) by post or by hand to the office of the Board. However, the Appellant (assisted by the Duty lawyer Service (“DLS”) at the time) would have explained to him the Decision and would have been told of the time limit requirement as well as the statement of reasons for lateness.

11.  The Appellant has provided under Section 5 of the Notice of Appeal a statement of reasons that he was late but no documentary evidence in support of the reasons was adduced.

12.  The Notice of Appeal was purportedly dated 14 August 2017. The envelope (which enclosed the Notice of Appeal) and the Notice of Appeal reveals that the Appellant was at the time of sending the Notice of Appeal stayed/detained at Tong Fuk Correctional Institution at 31, Ma Po Ping Road, Lantau Island, Hong Kong.

13.  The Notice of Decision was addressed to the Appellant care of DLS., CAT Office. The last day (as extended by the Section 37ZV) when the Notice of Appeal must be filed with the Board should therefore 16 August, 2017. The Board received the Notice of Appeal on 17 August 2017. The Appellant was therefore late by one day.

14.  The Notice of Appeal was sent to the Board by post. Given he stayed or was detained at Tong Fuk Correctional Institution, the Appellant would not have been able to send the Notice of Appeal by hand. On basis of the date of receipt of the Notice of Appeal on 17 August 2017, it is likely that the Notice of Appeal was posted on or after 14 August, 2017 but before 17 August 2017 when the Board received the envelope and the Notice of Appeal. As the Notice of Appeal does contain, inter alia, a statement of reasons for late filing, the Appellant was at least under the impression that he would be late especially when he might have mistaken about the last date for filing of the Notice of Appeal (in view of the Section 37ZV) or he was already late when he completed and signed the Notice of Appeal.

15.  On basis of the information available to me, the Appellant has failed to comply with the strict time limit requirement for one day.

16.  The reasons advanced by the Appellant under the statement of reasons in relation to the lateness are that his lawyer gave him the Notice of Decision very late, there was intervening holiday and he went to Queen Mary Hospital (presumably for treatment).

17.  The Appellant failed to provide any information as to how late his lawyer was. There was no information as to whether he was under confinement in the Queen Mary Hospital nor why the intervening holiday (if any) and his visit to Queen Mary Hospital had hindered him from completing or sending the Notice of Appeal in time.

18.  Given the Claim, it must have been a matter so important to the Appellant since the Appellant would be subject to harm or may even be killed if he failed in the Claim and is returned to Pakistan. The Appellant would have been cautious and ought reasonably to have completed and sent the Notice of Appeal to the Board earlier than 14 August 2017 when was the alleged date of completion of the Notice of Appeal. It must also have been obvious to him that sending of the Notice of Appeal by post takes time. The Appellant could and should have completed the Notice of Appeal earlier. If so, he would not have been late, albeit, one day.

19.  In the absence of further or sufficient information and documentary evidence to enable me to find that there are special circumstances despite the lateness was for one day, I am not satisfied that there was special circumstances to justify the late filing of the Notice of Appeal. The Appellant has been given opportunity to provide sufficient information and/or documentary evidence in support his application for late filing but has failed to do so.”    

14.On 14 June 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

(1)  that the Board’s decision is not correct in failing to consider the ground realities in Pakistan before reaching the decision; and

(2)  that the Applicant was not given the opportunity to present his case properly to the Board as he was then serving a prison sentence in Tong Fuk Prison and was therefore unable to file his appeal earlier.

15.Before proceeding to consider whether these grounds of the Applicant are reasonably arguable for his intended challenge, or whether there is any error of law or irrationality in the Board’s Decision or any procedural unfairness in its process of his application for late filing of his Notice of Appeal, it would be relevant to first remind myself of those matters which the Board was required to take account of when deciding whether to allow the late filing of the Applicant’s Notice of Appeal as stipulated by subsections (2) and (3) of Section 37ZT of the Ordinance:

“(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.”  

16.The Applicant’s complaint under Ground (2) that he had not been given the opportunity to present his case properly, which presumably means an oral hearing for him to make submissions before the Board, can be disposed of quickly as subsection (2) of Section 37ZT as noted above clearly stipulated that the Board shall decide without a hearing whether to allow the late filing of his notice of appeal, and in which at Section 5 the Applicant should include a statement of the reasons for his failing to file his notice within the required period, which he did, and to be accompanied by any documentary evidence in support in his reasons, which he did not as found by the Board. As such I do not find any basis in this complaint of the Applicant.

17.However, what the Applicant had stated in that complaint that he was then serving a prison term in Tong Fuk Correctional Institution would be relevant in considering whether the Board was correct to find that he had failed to establish special circumstances which might otherwise justify allowing the late filing of his Notice of Appeal.

18.Firstly, a delay of one day cannot, on any view, be regarded as serious or significant.

19.Secondly, the Applicant was, as accepted by the Board, in prison when he received the Director’s Decision, not directly from the Director but through DLS, again as accepted by the Board, and while it was for the Applicant to show that he was indeed given the Decision late by his lawyer as one of the reasons in his statement stated in his application for late filing of his Notice of Appeal, given the fact that he was no longer legally represented after the Director’s Decision and was then in prison, it could have been easily verified by DLS in writing to the Board as to when was the Decision given to the Applicant in prison, and whether it was by hand or by post by DLS, and taking into account the inevitable restrictions and possibly delays as to incoming and outgoing mails for prisoners, as well as the time and formality in making legal visits if the Decision was given to him by hand by his former lawyer from DLS, a delay of one day in the filing of his Notice of Appeal in the Applicant’s situation should be regarded as all the more insignificant.

20.None of these matters, however, appear to have been taken into account or consideration by the Board in its decision, and as noted above, while the burden of proof lies on the Applicant to establish his reasons for delay, it is for the Adjudicator charged with determining the application to assess the validity of the evidence and the credibility of the Applicant, as part of the well-established principles and methods set out in the UNHCR’s Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status, reissued December 2011 (“UNHCR Handbook”) (see paragraphs 195 -196), and adopted by the Court of Final Appeal in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 1867, as Li CJ stated at para 21:

“ … The Handbook states that, while the applicant has the burden of proof, the duty to ascertain and evaluate all relevant facts is shared between the applicant and examiner. In appropriate cases, such as where statements are not susceptible of proof, if the applicant’s account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt: see paras. 195 and 196 of the Handbook.”

21.His Lordship went on to note the difficulties of proof faced by an applicant in his situation should be appreciated, as he may have fled from the country concerned with few belongings and documents and his level of education may be relatively low, and that it would not be appropriate for the adjudicator to just sit back and put the applicant to strict proof of his case, as it was observed at para 54:

“ … it would not be appropriate for the Secretary to adopt an attitude of sitting back and putting the person concerned to strict proof of his claim. It may be appropriate for the Secretary to draw attention to matters that obviously require clarification or elaboration so that they can be addressed by the person concerned. For example, in the present case, the respondent’s letter of 5 March 1999 stated that “proof documents” were available but could not be supplied due to the absence of photocopying facilities. The Secretary should obviously have looked into this.”

22.The exercise of such determination was in fact described as one of “joint endeavor” by Cheung CJHC (as he then was) in ST v Betty Kwan [2014] 4 HKLRD 277 (see para 39), and as noted above, the Adjudicator should have asked the Applicant, albeit in writing without hearing, for more information regarding his reasons for his late Notice of Appeal as raised in the Board’s decision if he found them necessary to establish his case, or to make his own inquiry, for example, with DLS as to when and how was the Decision given to the Applicant at the Tong Fuk Correctional Institution.

23.It is in fact critical to note that the two-tier screening process under the Unified Screening mechanism (“USM”) of non-refoulement claims, and in my view which should include an application for late filing of appeals or petitions, is not an adversarial process, nor is it the role of the determining authority to contest an application for internal protection or strive with zeal to identify indicators of lack of credibility, but rather it is its duty to assess the relevant elements of the application in cooperation with the applicant to ensure that the application is examined and decision taken objectively and impartially, as it is emphasized in the UNHCR Report “Beyond Proof – Credibility Assessment in EU Asylum Systems”, May 2013 (“UNHCR Report”) at p 37:

“Article 8(2)(a) of APD requires Member States to ensure that applications for international protection are examined and decisions taken objectively and impartially. The requirement of objectivity and impartiality applies throughout the procedure, including the process of both gathering and assessing evidence, and it applies to the examination of all applications regardless of the applicant’s identity, background or circumstances.”

24.Above all, high standards of fairness must be observed by the decision-maker in all aspects of the assessment and determination of the claim, and again which would in my view include applications for late filing of appeals and petitions to the Board, as Li CJ stated in Prabakar:

“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: R v Home Secretary, ex p Doody [1994] 1 AC 531 at p.560D-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.”

25.Here, the Board refused to allow the late filing of the notice of appeal by one day in the circumstances of the Applicant while in prison without legal representation and notwithstanding his stated reasons, thus depriving him of the second-tier screening process of his non-refoulement claim under the USM. For the reasons given, it is in my view reasonably arguable that such findings of the Board were irrational or Wednesbury unreasonable.

26.As for the Applicant’s complaint in Ground (1) that the Board failed to consider the relevant situations of Pakistan, I take it to mean “other relevant matters of fact within the knowledge of the Board” as required to be taken into account under Section 37ZT(2)(b) of the Ordinance as noted above in deciding whether to allow the late filing of his Notice of Appeal, and of which the Court of Appeal in Re Qasim Ali, CACV 547/2018, [2019] HKCA 430, 8 April 2019, held that those relevant matters should include the merits of the appeal, as Lisa Wong J in giving judgment of the Court explained as follows:

“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 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.”

27.In the Applicant’s case, it does not appear in the Board’s Decision that the Adjudicator had taken account of the merits of the appeal either by reference to the Director’s Decision or any of the grounds of appeal stated by the Applicant in Section 2 of his Notice of Appeal. It is therefore in my view reasonably arguable that the Board had failed to consider the merits of the appeal as part of the matters under Section 37ZT(2)(b) of the Ordinance in its determination of the Applicant’s application for late filing of his Notice of Appeal.

28.In the premises, and for the reasons given, I am of the view that the Applicant’s intended application for judicial review of the Board’s Decision in refusing to allow the late filing of his Notice of Appeal are reasonably arguable on the basis that (1) the Board’s findings that the Applicant had no good reasons for the late filing of his Notice of Appeal were Wednesbury unreasonable; and that (2) the Board had failed to take account or consider the merits of the appeal as part of the relevant matters of fact within the Board’s knowledge required under Section 37ZT(2)(b) of the Ordinance, and I accordingly grant leave for him to do so on those bases.

29.It follows that in accordance with Order 53 rule 5 of the Rules of the High Court, Cap 4A, the Applicant shall file an originating summons on those grounds within 14 days of this decision, and serve a copy thereof together with all the relevant documents on the Board as respondent and the Director as interested party.

Dated the 8^th day of June 2021

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