Babar Rizwan v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1951/2018

[2021] HKCFI 3488

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1951 of 2018

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only; or
	consideration of documents and Applicant being absent in open court;

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 10 August 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board’s Decision”).

2.The applicant did not ask for a hearing.  Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the matter is dealt with on paper.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the Board is the proposed respondent and the Director of Immigration (the “Director”) is the interested party.

The applicant

4.The applicant is a citizen of Pakistan.  He entered Hong Kong illegally on 7 November 2013 and was arrested on the same date.  On 14 November 2013, he lodged a non-refoulement claim. 

5.The applicant claimed that if refouled, he would be harmed or killed by Iram’s family and that he would be arrested by the police in Pakistan for a false case against him.  According to the applicant, he was a supporter of Pakistan Muslim League (Q) (“PMLQ”).  In around 2012 or 2013, PMLQ dissolved and the applicant changed to support Pakistan Tehreek-e-Insaf (“PTI”).  He claimed to be in love with Iram whose father was the local president of PMLN, a rival political group.  Iram’s father disapproved their relationship and her cousins attacked him and his brother.  Both of them suffered head injuries.  The applicant believed that another reason for the attack was that they wanted to weaken the PTI.  Also, the applicant’s father informed him that someone registered a false case against him.  Later, in October 2013, some men fired at the applicant’s car.  Out of fear, he eventually fled to Hong Kong for protection.  Details of his story are set out in paragraph 8 of the Director’s Decision described below.

The Director’s Decision

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

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

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 27 February 2017 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was not substantiated. The Director found that the level of risk of him being harmed or killed by Iram’s family and/or arrested by the police in Pakistan upon refoulement was assessed to be low [13]-[17]; that state protection was available to him [18]-[25] and that internal relocation was an option open to him [26].

The Board’s Decision

8.On 27 November 2017, the applicant filed a notice of appeal/petition (dated 24 November 2017) against the Director’s Decision to the Board.  He was late by around 8 months.  The Board considered the statutory requirement under section 37ZT of the Immigration Ordinance, Cap.15 that the Board should consider preliminarily whether to allow the late filing.  It was guided by the three stages as laid down in The Secretary of State for the Home Department v Begum [2016] EWCA Civ 122.

9.The Board considered the applicant’s reason for late filing at [13].  It found that the applicant’s excuse of lack of language assistance was unsatisfactory as he was assisted by the Duty Lawyer.  Further, he had been in Hong Kong since 2013 and he also wrote his Notice of Appeal in English [17].  The Board proceeded to state that it had:

“…evaluated all the circumstances of this application in accordance with the applicable legal provisions, especially section 37ZV(3) of the Ordinance, bearing in mind the principles stated in SSHD v Begum. Those principles are that there is a need to enforce compliance with rules as set out in the Ordinance; and the need for this type of application to be conducted efficiently and at proportionate cost”.

10.As a result, the Board found that there was no special circumstances pursuant to section 37ZT(3) of the Ordinance that warranted the exercise of its discretion to allow the late filing.  

Application for leave to apply for judicial review

10.  The applicant filed Form 86 dated 17 September 2018 for leave to apply for judicial review of the Board’s Decision, which refused to extend time for him to file his Notice of Appeal, effectively dismissing his appeal.

11.In his affirmation in support of his application, he attached his letter, in which he told the Court that at the material time, he was being detained in prison.  He was not aware of the Court’s decision.  His solicitor or his case officer did not inform him on time.

DISCUSSION

12.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

14.The Board relied upon the legal principles in the UK authority The Secretary of State for the Home Department v Begum [2016] EWCA Civ 122 (03 March 2010), which placed emphasis on the expeditious disposal of the proceedings, the overriding principle under the CPR of the UK.

15.There are two observations in relation to the legal principles:

i.  CPR rule 3.9 of the UK practice does not apply in Hong Kong.  CPR and Civil Justice Reform in Hong Kong are not identical, at least on the objectives, one being overriding and the other underlying.  More importantly, Order 1A, rule 2(2) provides:

“In giving effect to the underlying objectives of these rules, the Court shall always recognize that the primary aim in exercising the powers of the Court is to secure the just resolution of disputes in accordance with the substantive rights of the parties.”

ii.     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.”

16.By “the merits of the applicant’s case”, the Court of Appeal is obviously referring to the facts as alleged by the applicant in support of his claim and the circumstances relating to his claim.  All of these are in the Director’s Decision, which should have been given to the Board by the Director under section 9(1)(a) of Schedule 1A of the Ordinance:

“Director to provide facts

(1) The Director must, as soon as practicable after receiving a copy of a notice of appeal served under section 8 of this Schedule, provide to the Appeal Board and the person who has lodged the appeal—

(a) if the decision being appealed against is a decision under section 37ZI(1)(b) rejecting a torture claim—

(i) a copy of the completed torture claim form relating to the torture claim in respect of which the decision was made; and

(ii) a copy of the written record of any interview of the claimant conducted by an immigration officer in considering the torture claim; …”

17.The Board confirmed that it had considered all the circumstances of the case before making its decision of refusing extension of time for the applicant to file his Notice of Appeal.  The Court of Appeal in Khan Kamal Ahmed’s case considered that the circumstances should cover the merits of the case, which refer to the Director’s Decision.  According to the Court of Appeal’s decision, the Board is bound to consider the Director’s Decision before deciding whether it is just to refuse extension of time for the applicant to file his Notice of Appeal.

18.I find that the applicant has a realistic prospect of success in his application as there is no indication in the Board’s Decision that the Board had considered the merits of the applicant’s case.  Although the Court of Appeal’s decision precedes the Board’s Decision, in my view, since the decision bears on the law, it applies to the Board’s Decision as well.

CONCLUSION

19.I therefore grant leave for the applicant to apply for his intended judicial review.  The applicant has to take out the originating summons within 14 days after the grant of the leave in accordance with Order 53, rule 5 of the RHC.

Dated the 8^th day of December 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