Muhammad Dost v. Torture Claims Appeal Board

HCAL 2120/2018

[2022] HKCFI 2552

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2120 of 2018

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:

Leave to apply for judicial review granted.

Observations for the Applicant:

1.The Applicant is a 54-year-old national of Pakistan who last arrived in Hong Kong on 18 October 1995 with permission to continue to work as a foreign domestic helper until the expiration of his employment contract on 3 April 1996 when he did not depart and instead overstayed, and almost 20 years later on 5 January 2016 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 the local Shiite Muslims for religious conflicts as he was a Sunni Muslim. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised as a Sunni Muslim in Village Khuas, District Khusnab, Punjab, Pakistan where the majority of the villagers were Shiite Muslims who frequently had violent confrontations with the minority Sunni Muslim villagers including the Applicant’s family, and on one occasion in August 1985 the Applicant was attacked by a group of Shiite villagers with wooden sticks that he suffered serious cuts and bruises all over his body that he was subsequently hospitalized for almost one week.

3.After another occasion in August 1988 when he received death threats from a group of Shiite villagers, the Applicant and his family moved to another village in Johar Abad, and in April 1989 the Applicant departed Pakistan to work as a foreign domestic helper in Hong Kong.

4.However, when his last employment contract expired on 3 April 1996, the Applicant was afraid to return to Pakistan and instead overstayed in Hong Kong, and almost 20 years later on 5 January 2016 he surrendered to the Immigration Department and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 18 December 2017 and attended screening interview before the Immigration Department with legal representation.

5.By a Notice of Decision dated 30 January 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 (“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”).

6.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 the local Shiite villagers upon his return to Pakistan due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of them to seriously harm or kill him given all the time and opportunities to do so or that after all these years since he left the country in 1995 that there would still be any adverse interest in him, that in any event in the absence of any official involvement that state or police protection would be available to the Applicant if resorted to upon his return to Pakistan, 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 the country away from his home district in large cities such as Lahore or Islamabad where it would be difficult if not impossible for anyone to locate him.

7.On 26 February 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but as his Notice of Appeal was filed outside the 14-day period required by Section 37ZS (1) of the Immigration Ordinance, 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.

8.By a written decision dated 28 August 2018 the Board refused to allow the late filing of the Applicant’s Notice of Appeal upon finding that he had been late by 11 days, that he had failed to provide any reason or explanation for his delay, nor were there any special circumstances that would make it unjust not to allow the late filing of his Notice of Appeal.

9.On 4 October 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 merely attached a copy of the Board’s decision but without putting forth any proper ground for his intended challenge, nor did he request any oral hearing for his application.

10.Nevertheless, given the serious implication of the Board’s decision in effectively denying the Applicant the right to proceed to the second-tier screening process of his non-refoulement claim by an Adjudicator under the Unified Screening Mechanism (“USM”) on all the applicable grounds over a delay of 11 days, which may not be considered as substantial or significant given that he was an unrepresented and non-English speaking claimant, and where his life and limbs were said to be at stake according to his claim, accordingly high standards of fairness require that the Board’s reasons for refusing the late filing of his Notice of Appeal be scrutinized by the Court for any error of law or irrationality or procedural unfairness in such process.

11.In its decision the Board gave its findings as to the delay of the Applicant’s Notice of Appeal and its reasons for not allowing its late filing as follows:

  “15. The Notice of Decision was dated 30 January, 2018. There is no complaint that the Notice of Decision was given to the Appellant lately. The last day (as extended by the Section 37ZV) when the Notice of Appeal must be filed with the Board should therefore be 15 February, 2018. The Board received the Notice of Appeal on 26 February, 2018. The Appellant was therefore late for 11 days though the period from 16 February, 2018 to 19 February 2018 was Chinese New Year holidays.

  16. No explanation nor information whatsoever was given as to why the Appellant was late nor are there information as to what efforts he made to try to comply with the time limit for filing of the Notice of Appeal in time. There is nothing before me in order to find any special circumstances which would make unjust a refusal to allow late filing: Section 37ZT (3) of the Ordinance.

  17. There is equally no complaint that there was delay on the part of the legal adviser. The Appellant has admittedly failed to comply with the strict time limit requirement.

  18. Given the nature of the Claim, it must have been a matter so important to the Appellant since the Appellant would be subject to harm or may even be killed if he failed in the Claim and is returned to Pakistan. The Appellant would have been cautious and ought reasonably to have ensured that the Notice of Appeal was filed with the office of the Board by 15 February, 2018.

  19. The Appellant failed to provide any information and documentary evidence to enable me to find that there are/is special circumstance(s). Yet, the objective evidence is that the Appellant was late for at least 11 days. The Appellant has been given an opportunity to provide that information and/or documentary evidence in support but has not done so.

  20. For reasons as set out above, the Appellant’s application to allow late filing of the Notice of Appeal is refused.”

12.While the Board was certainly correct to find the Applicant to have failed to provide any explanation for his delay of 11 days with his Notice of Appeal, a delay which in my view may not considered as substantial or even significant in the circumstances of the Applicant as an unrepresented claimant who does not speak English, and with the long Chinese New Year holiday to follow immediately thereafter, but it seems to me from the above that the Board in refusing to allow such late filing of the Applicant’s Notice of Appeal, it primarily just focused on the lack of reasons for the late filing but without taking account of the merits of the Applicant’s appeal or the substance of his non-refoulement claim as part of the relevant matters of fact within the knowledge of the Board under Section 37ZT(2)(b) of the Ordinance, and as held to be necessary by the Court of Appeal in Re Khan Kamal Ahmed [2019] HKCA 377 and Re Qasim Ali [2019] HKCA 430, as Lisa Wong J explained in giving judgment of the Court for the latter as follows:

  “23. … even where there is a serious or significant breach for which no good reason is given, the decision maker should move to evaluate all the circumstances of the case that he knows of.

  24. In identifying what circumstances are relevant, it is imperative to bear in mind that the discretion to allow the late filing of a notice of appeal is exercisable when it would be “unjust” not to do so by reason of “special circumstances”: see s 37ZT(3) of the Ordinance.

  25. It is in this connection that we cannot agree with the Board or the Judge that merits need not or should not be considered (see Board’s Decision at [21] and Call-1 Form at [37]). In our opinion, it would be unjust not to allow the late filing of a notice of appeal where the appeal is meritorious. Indeed, nothing would be more unjust.

  26. The Board should have, under s 37ZT(2)(b) of the Ordinance, taken account of the merits of the appeal (albeit on paper without a hearing) regardless of the procedural breaches or the lack of explanation therefor. See Re Khan Kamal Ahmed, CACV 563/2018, [2019] HKCA 377, 2 April 2019, [16]-[20].

  27. For these reasons, we are of the view that the intended application for judicial review is reasonably arguable, meeting the threshold for leave to be granted …”

13.In the premises, and similarly in the Applicant’s case, the Board in refusing to allow the late filing of his Notice of Appeal, it also failed to take into account the merits of his appeal or the substance of his non-refoulement claim as recorded in the Director’s decision, which is a relevant matter of fact within the knowledge of the Board as required by Section 37ZT(2)(b) of the Ordinance, thus meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

14.For the reasons given, I grant leave to the Applicant to apply for judicial review of the Board’s decision on the said basis, and direct that he shall accordingly file and serve the originating summons within 14 days of this decision, and to serve a copy together with all the relevant documents on the Board as respondent and on the Director as interested party.

Dated the 17^th day of August 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