Mehmood Ansar v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 664/2019

[2022] HKCFI 1538

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 664 of 2019

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 a number of decisions, out of which only the Decision dated 25 February 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board’s Second Decision”), which deals with his claim on BOR2 risk as set out in paragraph 5 below is amenable to judicial review. The other decisions will not be dealt with.

2.The applicant did ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), a hearing is fixed on 20 April 2022. However, he was absent on the day of hearing without prior notice to the court. His application is, therefore, dealt with on paper.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 was amended to the effect that the Director is the proposed respondent and the Board is the interested party.

The applicant

4.The applicant is a national of Pakistan. He came to Hong Kong as an illegal immigrant and was arrested by police on 20 February 2014. By written representation dated 22 February 2014, he lodged non-refoulement claim with the Immigration Department.

5.The applicant claimed that, if refouled, he would be harmed or killed by Tariq and his men because Tariq wanted to obtain the farmland he inherited from his father forcefully. In 2013, Tariq took some men to the farmland and told him that he should not touch the crops because they belonged to him. He then hit him on his head with a stick causing him bleeding. Tariq was a gangster in the region. He reported the matter to police. The police demanded money from him. He did not pay them and the police took no action. A few days later, whilst he was driving his motorbike on the road, Tariq drove past and stopped him. He threatened him and said “Leave the land now and leave the village, otherwise, I would kill you.” He was scared and left Pakistan for Hong Kong. Details of his story are set out in paragraph 6 of the Director’s First Decision described below.

The Director’s Decisions

6.The Director considered the applicant’s claim in relation to the following risks:

(1)  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

(2)  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”);

(3)  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

(4)  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 way of the Director’s Decision dated 8 August 2016 (“the Director’s First Decision”), the Director dismissed the applicant’s claim on Torture risk, BOR3 risk and Persecution risk.  The Director found that the level of risk of harm upon the applicant’s return was assessed to be low because (i) the low frequency and low intensity of past ill-treatment from Traiq and his men was indicative of a low future risk of harm upon his return [12 & 13]; (ii) state protection would be available to him [15-20]; and (iii) internal relocation was an option open to him [21].

8.By Notice of Further Decision dated 14 July 2017 (“the Director’s Second Decision”), the Director rejected his claim on BOR2 risk for the reason that there was no evidence to show that his right to life would be violated upon return to Pakistan. 

The Board’s Decisions

9.The applicant appealed the Director’s First Decision to the Board.  The Board decided that an oral hearing could be dispensed with. It considered the appeal on paper.  Having considered the applicant’s evidence, the Board made its evaluation of the case and came to the conclusions that the applicant’s case did not fall within the context of the Convention for Persecution risk; that his treatment by Tariq did not attain the minimum level of severity within the scope of BOR3 risk; and that for the same reasons under the Persecution risk analysis, the Board was not persuaded that the applicant would suffer severe pain or suffering or even death at the hands of Tariq and his men if he returned to Pakistan. State protection and internal relocation were also available to the applicant. It therefore dismissed the applicant’s appeal by Decision dated 16 May 2017 (“the Board’s First Decision”).

10.The applicant also appealed the Director’s Second Decision to the Board.  The Board also dealt with his appeal on paper only. However, the applicant was late in filing the notice of appeal. The Director’s Second Decision was dated 14 July 2017. The deadline for him to appeal to the Board is 28 July 2017. His filing of the notice of appeal on 14 August was therefore late for 17 days, which is, in my view, not significant, bearing in mind that he was unrepresented and English is his second language.

11.His explanation was that he did not receive the Board’s Second Decision, which was sent to the Duty Lawyer’s office with the date chop of 14 July 2017. The Board took a very restrictive view on the interpretation of section 37ZA(1)(b) of the Ordinance, saying that the applicant did not file any evidence to support his allegation. It dismissed the applicant’s application for extension of time for filing his notice of appeal. In effect, the Board dismissed the applicant’s appeal.

Application for leave to apply for judicial review

12.The applicant filed Form 86 on 8 March 2019 for leave to apply for judicial review of the Board’s Second Decision. His application does not cover the Board’s First Decision, which has become final.

13.In his affirmation in support of his application, he repeated his reasons for the delay and further complained that he was not legally represented for the appeal before the Board. He said that the Director’s Second Decision was not sent to his residential address, which was on the Board’s record and that there was no interpretation service for him to understand the Director’s Second Decision and the Board’s Second Decision.

DISCUSSION

14.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

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

16.The issue before this Court is whether the Board had committed any procedural impropriety or unfairness in its decision not to extend time for the applicant to file his notice of appeal. Having considered the circumstances, I tend to take the view that the Board had committed such procedural impropriety for the following reasons.

(1)  The delay is 17 days only. Although the filing is still late, the length of the delay is a factor which the Board should take into account, bearing in mind the personal circumstances of the applicant and that there should be no prejudice to the Director or any other party.

(2)  The reason given by the Board is that the applicant did not file any evidence to support his allegation. It is difficult to imagine what evidence the applicant can submit to prove his allegation. He said that the Director’s Second Decision was only sent to the Duty Lawyer’s Office, not to his residential. Therefore, he did not receive the Director’s Second Decision, which accounted for his delay. The information that the Board required are within the reach of the Board by making enquiry with the Director or looking up the records. The fact that the applicant was no longer legally represented is a fact well known to the Board as he was not legally represented in the first appeal, which the Board dealt with on paper.

(3)  If the Board was uncertain about the truth of the applicant’s allegations, the Board was at liberty to summons the applicant to make the enquiry for the purpose of resolving the uncertainly. Although the Ordinance provides that the application should be dealt with without a hearing, I believe the Board has the power to call upon the applicant for information that it requires to make its decision, which will, no doubt, greatly affect the applicant.   The applicant has the obligation to cooperate with the Board for the assessment of his claim. See section 37ZA (1)(a).^[1] The Board has not given him the opportunity of clarifying the uncertainty himself.

17.For the reasons above, I consider that the applicant has a realistic prospect in his intended application for judicial review of the Board’s Second Decision.

CONCLUSION

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

Dated the 24^th day of May 2022

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