Amin Muhammad Alias Muhammad Amin v. Torture Claims Appeal Board

HCAL 1447/2022

[2023] HKCFI 463

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1447 of 2022

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 refused.

Observations for the Applicant:

1.The Applicant is a 40-year-old national of Pakistan who entered Hong Kong illegally on 17 November 2020 and was arrested by police on 26 November 2020. After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed by certain local leader of the political party Pakistan Muslim League-Nawaz (“PML(N)”) for refusing to join his party. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Lahore, Punjab, Pakistan. After leaving school he worked in various jobs including making auto parts, selling fruits and assisting in his father’s business.

3.In 2017 he followed his father’s footstep in supporting the political party Pakistan Peoples Party (“PPP”) without holding any official post in the party but regularly attended their local meetings and rallies.

4.Soon some of the local PML(N) supporters including their local leader started to approach him to invite him to join their party, but when he persistently refused their invitation, he was assaulted by them one day in May 2017 with wooden sticks that fractured his right arm, and that he was subsequently taken by his neighbours to the local clinic for treatments.

5.After the incident the Applicant fled to Mirpur to take shelter in a friend’s place for 7-8 months before returning to Lahore where he resumed participating in PPP’s activities, but after witnessing a violent attack of his fellow PPP supporters by the PML(N) supporters in June 2018 causing 2 deaths and many injuries, the Applicant became fearful for his own safety and fled to Mirpur again before moving on to Peshawar in early 2019, and then to Islamabad.

6.However, when he later heard that those PML(N) people were still looking for him everywhere, the Applicant felt it was no longer safe to remain in Pakistan, and so in August 2019 he departed for China, and from there he later sneaked into Hong Kong, and upon his arrest by the police and was referred to the Immigration Department, he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 22 July 2021 and attended screening interview before the Immigration Department with legal representation.

7.By a Notice of Decision dated 20 October 2021 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”).

8.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 and substantial risk of him being harmed by those PML(N) people upon his return to Pakistan due to the low intensity and frequency of past ill-treatment from them, that there was no evidence or reason for them to specifically target him or to have any adverse interest in him given that he was just an ordinary PPP supporter without any official post in the party, 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, 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 238 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 Karachi where it would be difficult if not impossible for anyone to locate him.

9.On 19 July 2022 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but as his notice of appeal was then filed outside the 14-day period required under Section 37ZS(1) of the Immigration Ordinance, and so the Board pursuant to Section 37ZT (2) of the Ordinance proceeded to decide as a preliminary decision without a hearing whether to allow the late filing of the Applicant’s notice of appeal by taking account of the statement of reasons stated in his application for late filing and the evidence relied on in support of those reasons.

10.The Applicant’s stated reasons were essentially that after receiving the Director’s decision on 22 October 2021, he was arrested by police 3 days later on 25 October 2021 for certain criminal offence, and had all along been in detention and prison, during which he did not know he could still make his appeal from inside prison until much later when he was so advised by a friend, but by then he was already way out of time to file his notice of appeal.

11.By a Decision dated 24 November 2022 the Board refused to allow the late filing of the Applicant’s notice of appeal upon finding that it was late by more than 8 months which was very substantial and inordinate, that he was given a copy of the Director’s decision on 22 October 2021 during a meeting with his lawyer from DLS together with an appeal form and was advised that if he wanted to appeal he must do so within 14 days of the decision, that his excuse of not knowing that he could do so from prison is not a reasonable for such a lengthy delay, and concluded that he had failed to exercise all due diligence to file his notice of appeal or to show that such delay was beyond his control, and that there were no special circumstances to warrant his inordinate delay.

12.On 8 December 2022 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 or his affirmation to which he just attached a copy of the decision but without putting forward any ground for his intended challenge, nor did he request any oral hearing for his application.

13.As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

14.In the Applicant’s case, the Board refused to allow the late filing of his notice of appeal in accordance with the statutory requirements under Section 37ZT of the Immigration Ordinance as amended on 1 August 2021, and hence it would be helpful to first set them out as follows:

“(1) If a notice of appeal is field after the expiry of the 14-day period referred to in section 37ZS(1), it must include an application for late filing of the notice, which –

(a) must include a statement of the reasons for failing to file the notice within that period; and

(b) must be accompanied by all available evidence relied on in support of the reasons referred to in paragraph (a).

(2) The Appeal Board must decide, as a preliminary decision without a hearing, whether the Board allows the late filing of the notice of appeal under subsection (3), and in doing so, the Board may only take account of the statement of reasons stated in the application for late filing of the notice of appeal and the evidence relied on in support of the reasons.

(3) The Appeal Board may allow the late filing of the notice of appeal if the person filing the notice provides sufficient evidence in writing to satisfy the Board that the person –

(a) had exercised all due diligence to file the notice within the period specified in section 37ZS(1); but

(b) failed to file the notice within the period because of circumstances beyond the person’s control.

(4) For the purposes of subsection (3), the fact that a person attempted to file one or more notices of appeal that do not comply with section 37ZS(2)(a) or (ab), whether within the period specified in section 37ZS(1) or otherwise, must not be taken as evidence that the person had exercised all due diligence to file a notice of appeal within the period.

(5) If the Appeal Board allows the late filing of the notice of appeal, it must, by written notice to the person filing the notice, inform the person of the Board’s decision.

(6) If the Appeal Board does not allow the late filing of the notice of appeal, it must, by written notice to the person filing the notice –

(a) inform the person that the Board refuses the notice as it is filed out of time; and

(b) give reasons for the refusal.”

15.In its decision the Board did in my judgment carefully and properly consider the Applicant’s reasons for his delay in filing his notice of appeal as stated in his application, that it also took the appropriate steps to make enquiries with the Commissioner of Correctional Service for the period of the Applicant’s detention/imprisonment as well as with his lawyer from DLS as to when the Applicant was given the Director’s decision and the advice he had received regarding his appeal to the Board, and then forwarded their replies to the Applicant for his further comments and responses, all of which the Board then took into consideration before arriving at its reasons for the refusal (see [9] – [15] of the Board’s decision), upon which the Board was in my judgment entitled to find in the circumstances that the Applicant failed to establish that he had exercised all due diligence to file the notice of appeal while being in detention or in prison given the very fact that he was able to do so on 19 July 2022 from within before he was actually released on 25 August 2022.

16.As Section 37ZT of the Ordinance stands since its amendments, it is clear that it was no longer necessary for the Board to take account of any other relevant matters of fact within its knowledge such as merits of the Applicant’s appeal hitherto held to be relevant by the Court of Appeal in Re Qasim Ali [2019] HKCA 430. As such and in the absence of any error of law or procedural unfairness in the process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge.

17.In the premises and having considered the Board’s decision, and for that matter also the Director’s decision, with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in their decisions or any failure on their part to apply high standards of fairness in their consideration and assessment respectively of the Applicant’s non-refoulement claim or his application for late filing of his notice of appeal.

18.For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and accordingly refuse his leave application.

Dated the 10^th day of March 2023.

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