Adil Zeb v. Torture Claims Appeal Board
Read the full judgment text of HCAL 1037/2021 on BabelCite. This High Court CFI judgment was delivered on 27 October 2021.
1. The Applicant is a 32-year-old national of Pakistan who entered Hong Kong illegally on 17 June 2007 and was arrested by police on 25 October 2007. 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 the Pakistani police over some criminal charges made against him. He was subsequently released on recognizance pending the determinatio
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HCAL 1037/2021 [2021] HKCFI 3194 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNo 1037 of 2021 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 Bruno Chan:
Observations for the Applicant: 1.The Applicant is a 32-year-old national of Pakistan who entered Hong Kong illegally on 17 June 2007 and was arrested by police on 25 October 2007. 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 the Pakistani police over some criminal charges made against him. He was subsequently released on recognizance pending the determination of his claim. 2.The Applicant was born and raised in Kashmir Colony, Gujaranwala City, Punjab Province, Pakistan. He received 9 years of formal education, and thereafter worked as a construction worker in his home district. 3.In 2006 he together with several friends committed a number of burglaries in his home area, and during the last one a security guard was shot and injured by one of his gang, and to avoid police investigation, the Applicant fled to Karachi to take shelter in a relative’s place, and later when he heard that his friends had all been arrested by police and were tortured into making their confessions but had still been detained without trial, the Applicant feared that he would end up in the same situation if arrested by police, and so he departed Pakistan for China, and from there he later sneaked into Hong Kong and raised his non-refoulement claim for protection, for which he completed a Supplementary Claim Form (“SCF”) on 4 December 2014 with legal representation from the Duty Lawyer Service (“DLS”) but failed to attend any of the scheduled screening interview before the Immigration Department without explanation. 4.Whilst being released on recognizance pending the determination of his claim, the Applicant was arrested by police again on 3 separate occasions between 2009 and 2012 for failing to report on his recognizance to the Immigration Department at the appointed dates. 5.By a Notice of Decision dated 29 April 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 (“Ordinance”) (“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”). 6.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no reliable evidence that he would be tortured or killed by the police upon his return to Pakistan, that if he was indeed being pursued by the Pakistani police for crimes committed in his home country that he would not be entitled to non-refoulement protection as a fugitive of the law, and that reliable and objective Country of Origin Information (“COI”) show that he would be entitled to due process and proper trial in Pakistan under the existing legal system and with laws to protect him from torture and abuses by the police that his non-refoulement claim for protection was rejected under all applicable grounds. 7.On 18 November 2015 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but as his Notice of Appeal was clearly filed outside the 14-day period required under Section 37ZS(1) of the Immigration Ordinance, the Applicant in Section 5 of his Notice of Appeal made an application for late filing, for which he provided the following explanation: “I had infection on my both feet I was admitted in the hospital in CIC and Pik Uk Prison so I am late to apply my appeal. There is no medical proof but in Pik Uk Prison and CIC hospital have record.” 8.It would be of note that in section 2 of his Notice of Appeal, the Applicant also repeated his claim of fear of being tortured by the Pakistani police on criminal charges if refouled to his home country. 9.Accordingly and in pursuance of 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 notice dated 25 August 2016 the Board refused to allow such late filing (“Board’s First Decision”). 10.In its decision the Board found the Applicant’s Notice of Appeal to have been late by more than 6 months, that while the records of the Immigration Department show that he had been detained at the Castle Peak Bay Immigration Centre (“CIC”) for 2 separate periods during which he did receive medical treatments, but there was nothing to indicate that he was unaware of the time limit for filing his Notice of Appeal or that illness would have prevented him from doing so within the time limit that he had failed to provide a satisfactory explanation for his delay, and that there had been no denial of justice or any unfairness to the Applicant during the whole of the process of his non-refoulement claim, and that instead he had been in frequent default in answering his recognizance and failure to respond to letters from the Immigration Department that his application for late filing of his Notice of Appeal was therefore refused. 11.Meanwhile on 20 January 2017 the Director on his own initiative invited the Applicant to submit any 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”), and in the absence of any response from him, the Director by a Notice of Further Decision dated 8 February 2017 rejected his claim under BOR 2 Risk upon finding that he had failed to establish a personal and real risk of his absolute and non-derogable rights under the HKBOR including right to life under BOR 2 being violated upon his return to Pakistan. 12.On 23 April 2018 the Applicant again lodged an appeal to the Board against this further decision of the Director, and again his Notice of Appeal was filed outside the required 14-day period, for which he explained in section 5 of his Notice of Appeal that he is “uneducated and not aware about legal process”, while in section 2 for his grounds of appeal, he complained that his BOR 2 claim was refused without assessment, that no complete evidence or details had been taken from him, and that the decision was unjust. 13.The Board accordingly proceeded again 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 notice dated 28 May 2020, the Board again refused to allow the late filing of this Notice of Appeal of the Applicant (“Board’s Second Decision”). 14.In this decision the Board found the Applicant’s delay on this occasion even more serious in exceeding 14 months, that it noted his past failure to report on his recognizance on many occasions or to attend any of his interviews before the Immigration Department in his earlier claim, that he had consistently defaulted in his obligations to advance his claim with reasonable diligence, that his statement in section 5 of his Notice of Appeal did not provide any reasonable explanation for his extremely lengthy delay, and that he did not disclose any special circumstances which would make it unjust not to allow the late filing of his Notice of Appeal. 15.On 22 July 2021 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s Second Decision, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he just stated that he is not satisfied with the decision and that his life is still in danger in his home country but without putting forward any proper ground for his intended challenge, nor did he request any oral hearing for his application. 16.By then the Applicant was also seriously out of time with his intended application, as Order 53 Rule 4(1) of the Rules of the High Court, Cap 4A 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. 17.As the last day of the 3-month period for the Applicant to file his Form 86 fell on 28 August 2020, the Applicant was therefore more than 10 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] HKC 393. 18.In the Applicant’s case, a delay of more than 10 months must be considered as very substantial, for which he did not provide any explanation in his Form or his supporting affirmation, and while I note that he was then and is still being detained at CIC, even taking into account of the various restrictions and inconveniences inevitably caused to the detainees such as delays to incoming and outgoing mails or difficulties in accessing legal assistance, I fail to see any good or valid reasons for such serious delay with the Applicant’s leave application. 19.As for the merit of the intended application, which is the most important factor to be taken account, the Applicant has as noted above not put forth any proper ground for his intended challenge. Nevertheless, the Court shall adopt an enhanced standard in scrutinizing the Board’s decision in particularly its reasons for refusing to allow the late filing of his Notice of Appeal given the seriousness of the issues at hand which have the consequences of denying him his right to the second-tier screening process of his non-refoulement claim by the Board under the Unified Screening Mechanism (“USM”) in place since March 2014. 20.As a start it would be relevant to first refer to the relevant provisions under Section 37ZT of the Ordinance for the determination by the Board whether to allow the late filing of a Notice of Appeal as follows:
21.In its Second Decision, the Board gave the following reasons for its refusal to allow the late filing of the Applicant’s Notice of Appeal regarding his BOR 2 claim as follows:
22.While the Board did correctly remind itself of the relevant principles to be applied in the determination of applications for the late filing of a notice of appeal, including those of the Court of Appeal in Re Qasim Ali [2019] HKCA 430 and Re Khan Kamal Ahmed [2019] HKCA 377 which held that the merits of the appeal should be taken into account regardless of the procedural breaches or the lack of explanation therefor (see [25]-[26] of Re Qasim Ali), which is part of the relevant matters of fact within the Board’s knowledge under Section 37ZT(2)(b) as noted above, but in its decision not to allow the late filing of the Applicant’s Notice of Appeal, the Board did not appear to have done so, nor did it refer to any of those grounds of appeal stated in section 2 of the Notice of Appeal as noted in paragraph 12 above, and if it indeed had taken them into account, it did not appear to have given any or sufficient reasons why they were not accepted as special circumstances that would make it unjust not to allow the late filing of the Applicant’s Notice of Appeal. 23.It would also be relevant to note that one of the Applicant’s complaints in his stated grounds of appeal against the Director’s Further Decision was that his BOR 2 claim was refused without proper assessment, of which the Board did point out that the Applicant had not provided any further information to the Director in support of his such claim (see [21] of the Board’s decision), the fact is that the Director did nevertheless proceed to assess the Applicant’s BOR 2 claim on the basis of those findings made in the earlier decision as to his other claim under torture risk, BOR3 risk and persecution risk, but which the Board would not have been able to do after it had earlier refused the late filing of the Applicant’s Notice of Appeal against that decision of the Director, and had henceforth never made any finding of its own regarding the Applicant’s claim under those other applicable grounds which otherwise could have enable it to proceed to assess the merits of the Applicant’s appeal regarding his BOR 2 claim. 24.Which thus brings me back to the Board’s First Decision in refusing to allow the late filing of the Applicant’s Notice of Appeal against the Director’s earlier decision, when the Board was clearly at the time without the benefit of the Court of Appeal’s decisions in Qasim Ali and Khan Kamal Ahmed supra, and had therefore, as noted above, never taken account of the merits of that appeal of the Applicant in its decision to refuse its late filing, of which it would also be relevant to examine more closely the Board’s reasons for not accepting the Applicant’s explanation for his delay as stated in the First Decision as follows:
25.Given the Board had accepted that the Applicant was at the material time being detained at CIC during which he had also received medical treatments for quite a number of days, and hence if there were any question or doubt over the severity of his medical condition to justify the length of his delay with the filing of his Notice of Appeal, the Board should have gone on to make further enquiries as to whether the Applicant had also been detained at Pik Uk Prison as alleged, what sort of medical condition he was then in, and what medical treatments he had been receiving at that time, information of which should be readily available from the Immigration Department, before proceeding to decide whether it would by reason of special circumstances make it unjust not to allow the late filing of his Notice of Appeal. Certainly high standards of fairness would have required the Board to do so. 26.In the premises, and for the reasons given, I am of the view that it would be reasonably arguable that the Board (i) in refusing to allow the late filing of the Applicant’s Notice of Appeal in both of its decisions had failed to take account of the merits of his appeals; and (ii) failed to apply high standards of fairness in its determination of the Applicant’s statement of reasons for the late filing of his Notice of Appeal in its first decision and/or to give any or sufficient reasons for rejecting his stated explanations; thus meeting the threshold for leave to be granted to apply for judicial review as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676. 27.Accordingly, I extend time for the Applicant to do so, and grant leave for him to apply for judicial review of both the First Decision and Second Decision of the Board on the basis of the grounds 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 on the Director as interested party. Dated the 27th day of October 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
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Cases cited in this judgment