Ali Saif v. Torture Claims Appeal Board and Another

HCAL 655/2021

[2021] HKCFI 2229

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 655 of 2021

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 refused.

Observations for the Applicant:

1.The Applicant is a 34-year-old national of Pakistan who arrived in Hong Kong on 14 November 2014 with permission to remain as a visitor up to 21 November 2014 when he did not depart and instead overstayed, and on 19 January 2015 he surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed by his creditor for failing to repay his loan. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Lahore, Punjab, Pakistan. After leaving school and in 2012 he started to operate a shop selling mobile phones and accessories with a partner by borrowing a loan from a local loan shark by the name of Jagga with the loan repayable within 2 years with interests.

3.One day in May 2014 he discovered that his partner had stolen all the money from their business and disappeared, and as a result the Applicant was unable to maintain his business or to make any loan repayment to Jagga, and after being threatened by Jagga and his men over the default of his loan repayment, the Applicant fled from Lahore to hide in his aunt’s place in Multan before moving on to Islamabad, and on 13 November 2014 he departed Pakistan for Hong Kong where he subsequently overstayed and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 19 April 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

4.By a Notice of Decision dated 17 May 2018 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”).

5.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that there will be any real risk of him being harmed or killed by his creditor and followers upon his return to Pakistan due to the low intensity and frequency of past ill-treatment from them, that it was in any event a private monetary dispute between them without 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”) show that reasonable internal relocation alternatives are available in Pakistan with a large population of 204 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 adult with working experience to move to other part of Pakistan away from his home district in large cities such as Karachi where it would be difficult if not impossible for his creditor to locate him.

6.On 30 September 2020 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but by then he was clearly outside the 14-day period required for the filing of notice of appeal under Section 37ZS of the Immigration Ordinance, and for his delay he explained in Section 5 of his Notice of Appeal as follows:

“I have just received news from my family members back at Pakistan that Jagga and his group of gangster had gone to my family home to search for me and threatened to kill me since the loan is long overdue and not repaid.

My family and I fear for my safety. My mother has asked me to seek non-refoulement protection again in Hong Kong SAR.” 

7.As for the grounds of his intended appeal, the Applicant stated in Section 2 of his Notice of Appeal:

“The Immigration department had under estimated the risk of me being killed upon return to Pakistan. Should the Department be wrong in its risk assessment and send me back to Pakistan, it will result in an irreversible harm to my body or even death.”

8.Pursuant to Section 37ZT(2) of the Ordinance, the Board proceeded to decide as a preliminary decision without a hearing whether to allow the late filing of the Applicant’s Notice of Appeal, and by a written decision dated 24 February 2021 the Board refused to allow the late filing of the Applicant’s Notice of Appeal upon finding that the Director’s decision had been properly served on the Applicant through his lawyer from DLS, that he had been seriously late by more than 2 years and 4 months with his Notice of Appeal, that his statement of reasons for his late filing given in Section 5 of his Notice of Appeal did not provide any proper explanation or reason for his serious delay, that the grounds of appeal stated in his Notice of Appeal did not disclose any reasonably arguable merits in his intended appeal, and that it was not satisfied that by reason of any special circumstances that it would be unjust not to allow the late filing of the Applicant’s Notice of Appeal.      

9.On 7 May 2021 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 and the Adjudicator reached their decisions wrongly in assessing his non-refoulement claim as unfair and unreasonable;

(2)  that the Adjudicator failed to give him sufficient time or opportunity to arrange relevant evidence for his claim and his appeal;

(3)  that the Director failed to appreciate or give proper importance or weight to the presence of State acquiescence in his case which had led to an unfair outcome of rejecting his non-refoulement claim;

(4)  that the Director failed to take into account of the fact that the Applicant had been tortured at the behest of the state law enforcement agencies that the state would 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;

(5)  that the Director had listed relevant COI which supported the Applicant’s aversions that the police in his home country would not be able to protect but failed to consider or give enough weight to those evidence and ruled otherwise;

(6)  that this was a case of unfair attitude shown by the Director against the Applicant which in itself is enough to render his decision void as the corruption and incompetency of the administration in the Applicant’s country is still a very serious problem as various human rights organizations have complied reports on the matter which stated testament to the Applicant’s assertions; and

(7)  that the Director failed to attain the high standard of fairness required by the Wednesbury test in the decision which should be considered unreasonable in the scope of public law.  

10.These are however all just broad and vague assertions of the Applicant containing several pages of key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Director or the Adjudicator had erred in their decisions, or in what way did they fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or why it was necessary or relevant to consider State acquiescence in his claim, or in what way did the Director fail to apply high standard of fairness in the determination of his claim. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and as such I do not find any of them reasonably arguable for his intended challenge.

11.In fact none of these grounds are relevant to the Board’s decision in refusing his seriously late filing of his Notice of Appeal, and at the hearing of his leave application, the Applicant produced a patch of medical certificates which he claims to support his explanation for his late filing of his Notice of Appeal due to his various medical problems but which he claims not to have the opportunity to produce them to the Board when his application for late filing was dealt with in his absence without a hearing.

12.This complaint of the Applicant that the Board had dealt with his application for late filing of his Notice of Appeal in his absence without a hearing can be easily disposed of as not arguable, as Section 37ZT(2) of the Ordinance clearly stipulates that the Board is to deal with such application without any hearing, and that the Applicant could have presented such documentary evidence by attaching them to Section 5 of his Notice of Appeal at that time in support of his application for late filing, but as found by the Board in its decision ([18]), the Applicant had never raised any medical issue for his delay in Section 5 of his Notice of Appeal.

13.Even if these documents were to show that the Applicant was indeed having some medical issues, of which he did not elaborate at the hearing but just claimed that he was only able to obtain them after his recent release from prison after having served a 4-year sentence for a drug-related offence, a close examination of them show that they would not assist the Applicant’s case in his present application.

14.These documents can be categorized in chronological order as follows:

(a)  Princess Margaret Hospital X-Ray Examination Report dated 4 October 2019 on renal problem;

(b)  Princess Margaret Hospital X-Ray Examination Report dated 25 October 2019 on right shoulder pain;

(c)  Princess Margaret Hospital X-Ray Examination Report dated 12 February 2020 on spine problem;

(d)  Queen Elizabeth Hospital Appointment Slip for spinal examination on 15 July 2021;

(e)  Queen Mary Hospital Admission Slip for colonoscopy examination on 22 July 2021; and

(f)  Queen Mary Hospital Appointment Slip for liver examination on 10 December 2021.

15.Firstly, none of these documents show that the Applicant had in fact been so incapacitated to the extent that he was unable to file his Notice of Appeal within time on or before 31 May 2018.

16.Secondly, and more relevantly, the earliest medical issue that these documents indicate had occurred in late 2019, and if it were indeed a relevant circumstance that had affected the Applicant with the filing of his Notice of Appeal, by then he would still have been seriously out of time by more than one year, for which it certainly cannot be accepted as a good reason for such an inordinate delay even if he may have been in prison where there would be assistance available for filing of court documents, and in my view would not have assisted the Applicant’s application for the late filing of his Notice of Appeal even if these documents had been placed before the Board for determination.

17.In considering whether or not to allow the late filing of a notice of appeal, the Board is required by Section 37ZT(2) of the Ordinance to take account of (i) the 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 (ii) any other relevant matters of fact within its knowledge so as to be satisfied whether there is any special circumstances to make it unjust not to allow the late filing of the notice of appeal.  

18.In the Applicant’s case, the Board in correctly finding that he had not provided any good or valid reason for his serious delay, did proceed to evaluate all the circumstances of his application with the applicable legal provisions, as well as all the relevant matters of fact within its knowledge, including the merits of the appeal as it so reminded itself of the Court of Appeal’s decisions of Khan Kamal Ahmed CACV 563/2018 [2019] HKCA 377 (2 April 2019) and Qasim Ali CACV 547/2018 [2019] HKCA 430 (8 April 2019), and correctly concluded that there is nothing disclosed in the facts asserted by the Applicant which would amount to special circumstances to justify allowing the seriously late filing of his Notice of Appeal (see [16] and [23]-[24] of the decision).      

19.In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in the Director’s consideration and assessment of the Applicant’s claim or in the Board’s refusal to allow the late filing of his Notice of Appeal.

20.The fact is that, and of which the Board did also review (see [24] of its decision), it has been established by the Director in his decision that the risk of harm in the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Pakistan, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKCA 526.

21.For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse his leave application.

Dated the 30^th day of July 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