Asif Muhammad v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1186/2019

[2023] HKCFI 2902

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1186 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:

1.  Leave for the applicant to apply for Judicial Review of the Board’s Second Decision be granted; and

2.  The applicant has to issue the originating summons within 14 days from the grant of leave in accordance with Order 53, rule 5 of the RHC.

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the decision of the Director dated 3 March 2017 which rejected his claim on BOR 2 risk (“the Director’s Further Decision”) and the Decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dated 4 April 2019 dismissing the applicant’s appeal against the Director’s Decision as described below (“the Board’s Second Decision”).

2.The applicant asked for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court, a hearing was fixed for him to attend court on 22 March 2023. However, he was absent without prior notice to the Court. Therefore, his application is dealt with on the papers.

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

4.The applicant’s application for leave for judicial review of the Director’s Further Decision must be dismissed because he had made an appeal against it to the Board. The Board’s Second Decision has dealt with his appeal, though, for reasons below, the Board was in error not to extend time for him to file his notice of appeal. Nonetheless, the applicant is not allowed to pursue the Director’s Further Decision[1].

The applicant

5.The applicant is a national of Pakistan. He entered Hong Kong illegally on 19 January 2014 and was arrested by the police on the same date. On 22 January 2014, he lodged a non-refoulement claim. His claim was made on the basis that, if refouled, he would be harmed or killed by his uncle Ghulam Muhammad (“GM”) and cousin Muhammad Shahzad (“MS”) due to a land dispute.

6.In short, after the land distribution by his grandfather in 2007, the applicant’s father was not satisfied with the distribution. He had attempted to report to the police and the court about the unfair distribution but both were of no avail. Throughout the years, the disputes between the applicant’s family and GM caused grudges among themselves. One day in 2012, the applicant was attacked by MS on the land while he was getting water. He was sent to the hospital and treated with bandages.

7.After the attack, the applicant learnt that MS filed a first instance report against him. He then escaped to another village. A few days later, the applicant surrendered to the police station and was detained. He was later granted court bail. At the advice of his father, the applicant relocated to Islamabad. Six months later, the applicant returned home in mid-2013. During his stay, he received occasional threats from MS. Out of fear, the applicant eventually fled to Hong Kong for protection. Details of his claim are set out at paragraph 10 of the Notice of Decision dated 26 April 2016 by the Director (the “Director’s First Decision”).

The Director’s Decisions

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

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

b.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“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”).

9.By way of the Director’s Decision (“the Director’s Decision”), the Director dismissed the applicant’s claim on the grounds of Torture risk, BOR 3 risk and Persecution risk. In elaboration, the Director found that (i) the past events indicated that the perceived fear was not real or foreseeable [15]; (ii) state protection would be available to him [16]; and (iii) internal relocation was a viable option [17].

10.For reasons set out in the Notice of Further Decision dated 3 March 2017 (the “Director’s Further Decision”), the Director also found that the applicant’s right to life would not be violated and thus dismissed his claim on BOR 2 risk.

The Board’s Decisions

11.The applicant first appealed the Director’s Decision to the Board. His notice of appeal/petition was filed with the Board on 9 September 2016, which was almost four months out of time [4] - [5]. In his notice of appeal/petition, the applicant relied on lack of language assistance as the reason for delay [6].

12.Having considered the circumstances, the Board, by its decision dated 26 January 2017 (“the Board’s First Decision”) rejected the applicant’s explanation [11] - [18]. It further noted that the applicant had not provided any concrete evidence in support of his late filing [19]. As a result, there was no special circumstance that would warrant its permission to allow the late filing. Thus, the Board refused to allow the applicant’s late filing against the Director’s Decision.

13.On 10 April 2017, the applicant’s notice of appeal/petition against the Director’s Further Decision was received by the Board. He was late for 21 days [4] - [5]. His explanation for the delay was that he did not receive the Director’s Further Decision as he had changed address.

14.The Board also rejected this explanation. It stated that the applicant was obliged to notify the change of address to the Immigration Department [12]. Meanwhile, he had provided no details of when and how he received the Director’s Further Decision if he intended to rely on the assertion that he was only notified when he attended a court hearing [13] - [15]. Despite the reminders from the Board that he should notify the Board with any changes, the applicant had not responded to the said letters and letter which sent to his listed address in the notice of appeal/petition was returned [18].

15.In these circumstances, on 4 April 2019, the Board, by the Board’s Second Decision, also concluded that there was no circumstance that would warrant the permission of the late filing of notice of appeal/petition against the Director’s Further Decision. The applicant’s application was refused.

Application for leave to apply for judicial review of the Board’s Decision

16.The applicant has filed Form 86 dated 3 May 2019 for leave to apply for judicial review of the Board’s Second Decision.

17.In his affirmation and in support of his application, the applicant said he considered that the Board’s Decision was unfair. He had referred to the findings of the Director and the Board for his argument. 　Since the Court should only consider the Board’s Decision in this application, I shall therefore refer to his arguments in relation to the Board, unless the Board’s decision is related to the Director’s Decision. 　The following are his reasons.

(1)  The Board had not considered that BOR 2 right is protected Article 28 of the Basic Law and extra-judicial killings has to be considered if he were repatriated back to his country.

(2)  State acquiescence was not well-considered and corruption and incompetence of the administration in his country are still very serious problems.

DISCUSSION

18.The question before this Court is whether the Board was correct not to extend time for the applicant to file his notice of appeal against the Director’s Further Decision. It has to bear in mind that the merits of the applicant’s case are in the Director’s Decision and the Director’s Further Decision. The Board refused to extend time for the applicant to file his notice of appeal against the Director’s Decision without considering the facts of the applicant’s case.

19.It follows that the Board did not consider the merit of the applicant’s case for his application of extension of time for filing his notice of appeal against the Director’s Further Decision.

20.This is contrary to the decision of the Court of Appeal in Re Khan Kamal Ahmed [2019] HKCA 377, 2 April 2019, in a case where the applicant was late in filing his notice of appeal to the Board and he had given no reason for such delay, the Court of Appeal held,

“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.”

21.I note that section 37ZT of the Ordinance has been revised and operative since 1 August 2021. However, the revised version has no retrospective effect.

22.The Board is therefore in error of the law. Leave has to be granted to the applicant for his application.

CONCLUSION

23.I grant leave for the applicant to apply for judicial review of the Board’s Second Decision. The applicant has to issue the originating summons within 14 days from the grant of leave in accordance with Order 53, rule 5 of the RHC.

Dated the 23^rd day of November 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