Chaudhry Tariq Mehmood v. Torture Claims Appeal Board

HCAL 2474/2018

[2021] HKCFI 2632

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2474 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 (counsel for) the Applicant in open court / the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

1.  extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 8 March 2017 granted; and

2.  leave to apply for Judicial Review granted.

Observations for the Applicant:

1.The Applicant is a 41-year-old national of Pakistan who entered Hong Kong illegally on 8 August 2009 and was arrested by police on the following day. After he was referred to the Immigration Department for investigation, he raised a torture claim later taken as a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed by certain local people of the political party Pakistan Muslim League (N) (“PML(N)”) over a land dispute. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Village Nothia Shareef, District Rawalpindi, Punjab, Pakistan where his father owned some land but of which some villagers who were said to be PML(N) members wanted to purchase cheaply in 2007, and when his father refused, they then made threats against his father and his family, and after the Applicant and his uncle had been assaulted by those PML(N) people resulting in his uncle’s death and serious injuries to the Applicant which necessitated hospitalization.

3.Upon his discharge from hospital, the Applicant was still fearful for his life and fled to Lahore, and eventually on 21 July 2009 he departed Pakistan for China, and from there he later sneaked into Hong Kong, and upon his arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Supplementary Claim Form (“SCF”) on 8 October 2014 with legal representation from the Duty Lawyer Service (“DLS”) but failed to attend any screening interviews before an immigration officer due to alleged medical reasons.     

4.By a Notice of Decision dated 10 June 2015 the Director of Immigration (“Director”) rejected the Applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“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 the perceived fear of harm from those PML(N) people is real and foreseeable upon his return to Pakistan due to the low intensity and frequency of past ill-treatment from them, that in any event it was a private land 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 spread across a vast territory 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 Lahore where he had stayed without incidents and where it would be difficult if not impossible for those PML(N) people to locate him.

6.By a Notice of Further Decision dated 27 October 2016 the Director again rejected the Applicant’s claim in the absence of any response from him to an earlier invitation to submit additional facts which may be relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 Risk”).

7.By then the Applicant was already in the process of appealing to the Torture Claims Appeal Board (“Board”) against the earlier decision of the Director, the notice of which was filed on 26 June 2015, but for which he failed without explanation to attend the scheduled oral hearing on 14 December 2016 before the Board which proceeded to deal with his appeal in his absence and on paper. On 8 March 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

8.In its decision the Board found in the absence of any oral evidence from the Applicant due to his failure to attend the scheduled oral hearing for his appeal that it was unable to determine whether there is a real risk or chance or substantial grounds for believing that he will suffer his claimed harm upon his return to Pakistan, and concluded that he had failed to establish that he would face any of the proscribed risks that his claim for non-refoulement protection failed on all applicable grounds.

9.On 6 November 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he just repeated his claim that he cannot return to his home country as his life would still be in danger there but without putting forward any proper ground for his intended challenge, nor did he request any oral hearing for his application.

10.By then the Applicant was also seriously out of time with his application, as Order 53 rule 4(1) of the High Court Ordinance, Cap 4 requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.

11.As the last day of the 3-month period for him to file his Form 86 fell on 8 June 2017, the Applicant was almost 17 months late with his application, and in considering whether to extend time, the court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393.

12.In the Applicant’s case, a delay of almost 17 months must be considered as very substantial, for which he failed to provide any explanation for his such serious delay, and as the record shows that the decision was sent on the same day to his last reported address without being returned through undelivered post, I do not see any valid reason for his serious delay.

13.As for the merits of his intended application, as noted that the Applicant has not provided any proper ground for his intended challenge, but given the gravity of what is at stake and the seriousness of the issues at hand, the Court nevertheless shall on judicial review subject the Board’s decision to rigorous examination and anxious scrutiny to ensure that the required high standards of fairness as laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 have been met.

14.As noted above the Board dismissed the Applicant’s appeal because it was unable to determine the credibility of his claim in the absence of his oral evidence, for which it gave its explanations in the decision as follows:

“74. It is incumbent upon the Appellant to satisfy the Board that there is a real risk or chance or substantial grounds for believing that he will suffer the harm he claims to fear at the hands of Nasir or the other supporters of PML(N) to whom he has referred.

75. However the Board is unable to determine the credibility of his allegations in view of his failure to attend the hearing. In the absence of oral evidence from him, the Board is unable to determine whether there is a real risk or chance or substantial grounds for believing that he will suffer the harm he claims to fear if he returns to Pakistan. In the absence of oral evidence from the Appellant, the COI does not by itself demonstrate that he personally would face a risk of harm warranting non-refoulement protection.

76. He has failed to establish that he would face a Torture Risk, Persecution Risk or BOR 2 or BOR 3 Risks if he returned to Pakistan.”

15.While the Board was in the circumstances entitled not to schedule another oral hearing and to deal with the Applicant’s appeal in his absence, which was part of the 2-tiers screening process of his non-refoulement claim under the Unified Screening Mechanism (“USM”), I am of the view that it should have proceeded to analyse and assess the Applicant’s claim based on all other materials and information available before the Board including those in the hearing bundle supplied by the Director, of which it stated to have taken into account (see [19] of its decision), as it has been so held by the Court of Appeal in Re Hidayah [2018] HKCA 595, CACV 160/2018, 14 September 2018, in which the Board decided against the applicant also for the same reason that it was unable to determine her credibility in the absence of her oral evidence as she failed to attend the hearing, and in allowing the appeal the Court of Appeal explained as follows:     

“15. The Board decided the appeal against the applicant because it was unable to determine her credibility due to her failure to attend the hearing, and, in the absence of oral evidence, it was unable to determine whether there was a real risk or there were substantial grounds for believing that the applicant would suffer the harm she claimed to fear if she were to return to Indonesia. This is notwithstanding the Board had, in considering the appeal, taken into account the materials in the hearing bundle supplied by the Director (see [10] of the Board’s decision). There was no elaboration on why the Board’s inability to determine the credibility of the claim and whether the claimed fear of harm was well-founded should lead to a dismissal of the appeal. As we understand the Board’s reasons, it had not made any finding, and there was no adverse finding, on the credibility of the applicant’s case or on whether there was a basis for the claimed fear of harm. Although an applicant bears the burden of satisfying the Board that the claimed fear and risk is well-founded, if no adverse finding of credibility could be made on an applicant’s case, the Board would have to proceed to analyse and assess his claim against all applicable grounds on the basis that his case is plausible.

16. We are of the view that the applicant’s complaint that the Board had failed to give, or had given insufficient, reasons for dismissing her appeal against the Director’s decisions is an arguable ground, and that leave to apply for judicial review should be given on this ground.”

16.In the present case, I am also of the same view that it is reasonably arguable that the Board in dismissing the Applicant’s appeal against the Director’s decision had failed to give any or sufficient reasons, and that leave to apply for judicial review should be given to the Applicant in the circumstances notwithstanding his substantial delay.  

17.Accordingly, I extend time and grant leave to the Applicant to apply for judicial review of the Board’s decision in the ground stated above, and direct that he shall file the originating summons within 14 days of this decision, and to serve a copy thereof together with all the relevant documents on the Board as respondent and the Director as interested party.

Dated the 3^rd day of September 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