Aslam Mirza Imran v. Torture Claims Appeal Board

HCAL 1583/2019

[2024] HKCFI 1422

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1583 OF 2019

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 the Applicant in open court / the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

1.  Leave to apply for Judicial Review be granted;

2.  The Applicant do issue the Originating Summons within 14 days from the date hereof in accordance with Order 53, rule of the RHC (Cap 4A); and

3.  The Applicant do serve a copy of the Originating Summons together with all the relevant documents on the Torture Claims Appeal Board as respondent and the Director of Immigration as interested party.

Observations for the Applicant:

1.The Applicant is a 35-year-old national of Pakistan who entered Hong Kong illegally on 16 February 2016 and was arrested by the police on the same day.  After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim for protection on the basis that if he returned to Pakistan he would be harmed or killed by certain local supporters of the political party Pakistan Muslim League (N) (“PML(N)”) as he supported their rival Pakistan Muslim League (Q) (“PML(Q)”).  He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Jalal Pur Jattan, District Gujrat, Punjab, Pakistan.  After leaving school he ran his own mobile phone accessories shop in his home district, and supported PML(Q) regularly attended their local meetings and activities.  

3.During the 2013 general election, some local PML(N) supporters approached the Applicant to persuade him to join their party, and when he refused, they just left without saying anything further.

4.However, one night in April 2013 when he was on his way home from work, the Applicant was attacked by the same group of PML(N) supporters who punched and kicked him until they were intervened by some passers-by, and that the Applicant was then taken to a local clinic for medical treatments.

5.About 2 months later one evening the Applicant was attacked by 2 unknown men with knives and was slashed in the neck that he lost consciousness and collapsed on the ground, and was subsequently taken to a local clinic for medical treatments.

6.The Applicant suspected that those 2 unknown men were sent by PML(N) to kill him, and so he became fearful for his life and fled to Karachi to take shelter in a cousin’s place, and on 11 February 2016 he departed Pakistan for China, and from there he later sneaked into Hong Kong, and upon his subsequent arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 20 March 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

7.While being released on recognizance pending the determination of his claim, the Applicant was again arrested by police on 7 December 2017 for drugs trafficking for which he was subsequently convicted and sentenced to prison for 16 months.              

8.By a Notice of Decision dated 17 April 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”).

9.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from those local PML(N) supporters upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence or political reason for them to specifically target him for harm given that he was just an ordinary PML(Q) supporter without holding 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 207 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 areas of the country away from his home district in large cities such as Rawalpindi or Multan where it would be difficult if not impossible for anyone to locate him.

10.On 3 September 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but as it was filed outside the 14-days period required by Section 37ZS (1) of the Immigration Ordinance, Cap. 115, the Board in pursuance of 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.

11.It would be relevant to note here that the Applicant in his Notice of Appeal stated to be in Tong Fuk Correctional Institute, that in section 5 he gave his explanation for his delay in that he had been trying to obtain more documentary evidence in support of his claim, and in section 2 he repeated his claim of fear of being harmed or killed by the PML(N) supporters as grounds of his appeal.

12.By a Decision dated 6 May 2019 the Board refused to allow the late filing of the Applicant’s Notice of Appeal upon finding that his explanation for his delay unsatisfactory, as he had had legal assistance from DLS that he would have been aware of the time limit for his appeal, and that nothing contained in the facts submitted by him might amount to special circumstances that would make it unjust not to allow the late filing of his Notice of Appeal.

13.On 11 June 2019 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for relief was given in his Form or his supporting affirmation of the same date in which he just repeated his claim as before without putting forth any ground for his intended challenge, nor did he request any oral hearing for his application.

14.Nevertheless, given the seriousness of the issue at hand that the Applicant’s life and limb were said to be in jeopardy, and the implication of denying him of the second-tier screening of his non-refoulement claim by the Board under the Unified Screening Mechanism (“USM”), the Court will adopt an enhanced standard in scrutinizing the Board’s reasons for refusing the late filing of the Applicant’s Notice of Appeal.

15.Firstly, when the Notice of Appeal was received by the Board on 4 September 2018, and on the basis that the Director’s decision was sent to his lawyer from DLS on 17 April 2018, and while the Board did not make any specific finding as to the actual delay in the filing of the Applicant’s Notice of Appeal other than that it was “out of time” (see [6] of the decision), the delay would have been some 4 ½ months which would be considered as very substantial, but as the Board did note that the Applicant was on 7 December 2017 arrested for the drug offence which led to his subsequent conviction and 16-months imprisonment (see [3] of the decision), and that when the Notice of Appeal was sent to the Board on 3 September 2018, the Applicant was still in prison at the Tong Fuk Correctional Institution as stated in the Notice of Appeal and also on the envelope that contained his Notice of Appeal, it seems to me too simplistic for the Board to just brush aside his explanations as unsatisfactory without given any or adequate reasons or making any further inquiry as to exactly when and how the Applicant was given the Director’s decision by DLS, or taking into account that his imprisonment would certainly have affected his ability to prepare and file his Notice of Appeal when by then he no longer had legal representation.

16.More significantly, it also appears that in refusing the late filing of the Applicant’s Notice of Appeal, the Board failed to take account of the merits of the appeal which the Court of Appeal in Re Khan Kamal Ahmed, CACV 563/2018 [2019] HKCA 377, 2 April 2019, and Re Qasim Ali, CACV 547/2018 [2019] HKCA 430, 8 April 2019, has held to be part of the relevant matters of fact within the knowledge of the Board required by Section 37ZT (2)(b) of the Immigration Ordinance as the law then was, and as Lisa Wong J in giving judgment of the Court in the latter case elaborated:

“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 where 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 as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.” 

17.In the premises, and for the same reasons given, I am of the view that the Applicant’s intended application for judicial review of the Board’s decision is reasonably arguable on the grounds the Board (i) failed to give any or sufficient reasons for finding the Applicant’s explanations for the late filing of his Notice of Appeal as unsatisfactory or to make any or proper inquiry into the Applicant’s delay in the filing of his Notice of Appeal and/or to apply high standards of fairness in its decision not to allow the late filing of his Notice of Appeal; and (ii) failed to consider the merits of the Applicant’s appeal as part of the relevant matters of fact within the Board’s knowledge required under Section 37ZT (2)(b) of the Ordinance, thus meeting the threshold for leave to be granted as laid down by Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676. 

18.Accordingly, I grant leave to the Applicant to apply for judicial review of the Board’s decision on the grounds stated above, and direct that he shall file and issue his originating summons within 14 days of this decision, and to serve a copy thereof together with all the relevant documents on the Board as respondent and the Director as interested party.    

Dated the 28^th day of May 2024

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