Muhammad Akbar v. Torture Claims Appeal Board

HCAL 422/2024

[2024] HKCFI 2777

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 422 OF 2024

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;;

Order by Deputy High Court Judge Bruno Chan:

(1)  Extension of time for the application for leave to apply for Judicial Review be granted;

(2)  Leave for the Applicant to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 7 May 2020 be granted;

(3)  The Applicant do issue the Originating Summons within 14 days from the date hereof in accordance with Order 53, rule 5 of the RHC (Cap 4A); and

(4)  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.

(5)  Costs be in the cause; and

(6)  The Applicant’s own costs be taxed in accordance with the Legal Aid Regulations.

Observations for the Applicant:

1.The Applicant is a 45-year-old national of Pakistan who previously on 7 September 2002 arrived in Hong Kong as a visitor with permission to remain as such up to 21 September 2002 when he did not depart and instead overstayed, and for which he was convicted and sentenced to prison for 4 months, and upon discharge from prison he was repatriated to Pakistan on 14 January 2004, but more than 2 years later in September 2006 he sneaked back into Hong Kong, and was subsequently arrested by police on 3 May 2007 for trafficking in dangerous drugs for which he was convicted and sentenced to prison for another 4 months. After his discharge from prison and was referred to the Immigration Department for deportation, he raised a torture claim on the basis that if he returned to Pakistan he would be harmed or killed by those people previously involved in a fight with him and his friends which led to the death of a third party and for which he was falsely accused of murder, and after his torture claim was rejected, he then sough non-refoulement protection on the same basis. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Lahore, Pakistan. After leaving school he assisted in his father’s book-binding business in his home district to make his living.

3.One day in October 1998 while he was having meals with 3 of his friends in a local restaurant, they saw another friend being attacked by 3 men known to have political influences, and when they tried to intervene and during the ensuing scuffle some gun shots were fired which killed a passer-by, and thereafter the Applicant fled to another town to take shelter in an aunt’s place.

4.Later when he heard that those 3 assailants had come to his home in Lahore looking for him, and that they had also made false charges to the police against him over the shooting incident, the Applicant became fearful for his life and departed Pakistan in September 2002 for Hong Kong where he overstayed and was subsequently repatriated to Pakistan in January 2004.

5.However, upon returning to Lahore the Applicant heard that those 3 men were still looking for him and felt it was not safe to remain in Pakistan, and so on 18 September 2006 he departed for China, and from there he later sneaked into Hong Kong, and upon his arrest by the police he then raised his torture claim, and after it was rejected he then sought non-refoulement protection, for which he completed a Supplementary Claim Form (“SCF”) on 29 July 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.By a Notice of Decision dated 30 December 2016 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the remaining applicable grounds other than torture risk including 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”).

7.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 3 assailants upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from them, 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 201 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 Islamabad where it would be difficult if not impossible for anyone to locate him.

8.On 15 October 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 not filed within the 14 days after notice of the decision was given to him as required by Section 37ZS(1) of the Immigration Ordinance, Cap 115, he included in section 5 of the Notice an application for the late filing by claiming that he does not speak English and was arrested by police and put in prison that he was unable to lodge his appeal until early October 2018, and in section 2 he also put forward various grounds in support of his appeal against the Director’s decision.

9.The Board in pursuance of Section 37ZT (2) of the Ordinance then proceeded to decide, as a preliminary decision without a hearing, whether to allow the late filing of the Applicant’s Notice of Appeal, and by a Decision dated 7 May 2020 the Board refused the application upon finding that the deadline for the Applicant to file his Notice of Appeal was 17 January 2017 but that he did not do so until 15 October 2018 which was therefore more than 8 months late, that it was a serious and significant failure to comply with the rules, that his explanations of not speaking English and of being arrested by police were just bare assertions unsupported by any documentary evidence and were not good reasons for the breach, that his stated grounds of appeal only reiterated the same issues in his non-refoulement claim and which the Director had already carefully considered and given full reasons for rejecting his claim, and that there were no other matters known to the Board or revealed by the factual basis of his claim which might amount to special circumstances that might make it unjust not to allow the late filing of the Applicant’s Notice of Appeal.

10.On 6 March 2024 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision upon being granted with Legal Aid, and put forward the following grounds as amended for his intended challenge:

(1) Error of law/Misdirection in law in that the Board failed to take account of the merits of the appeal as part of the relevant matters of fact within its knowledge as required by Section 37ZT (2) of the Immigration Ordinance in its decision to refuse the late filing of the Applicant’s Notice of Appeal;

(2) That the Board failed to make sufficient enquiries in respect of the matters raised by the Applicant in his Notice of Appeal;

(3) That the Board failed to give adequate reasons and/or making findings of fact for its decision to refuse the late filing of the Applicant’s Notice of Appeal.

11.By then the Applicant was however seriously out of time with his application, as Order 53 rule 4(1) of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the day when grounds for the application first arose unless the Court considers that there is good reason to extend the period within which the application shall be made.

12.As the last day of the three-month period for him to file his Form 86 fell on 7 August 2020, the Applicant was therefore more than 3 years late with his application, and in considering whether to extend time, the Court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393.

13.In the Applicant’s case, a delay of more than 3 years must be considered as extremely substantial and inordinate, for which he explained in the Form 86 that prior to the deadline for him to file his application for leave to apply for judicial review of the Board’s decision, he was arrested by police on 30 July 2020 for some criminal offence and was all along being remanded by the Correctional Service pending trial before he was eventually convicted and sentenced to prison for 38 months, and upon his discharge from prison on 7 December 2022 he was then transferred to Tai Tam Gap Correctional Institution under detention of the Immigration Department, and it was there on 21 July 2023 that he was able to apply for Legal Aid for his present application, and for which he eventually managed with his present legal representation to file the Form 86 on 6 March 2024.

14.Given the Applicant’s incarceration as claimed, and although he could still have sought assistance with his application from welfare officers while in prison. I am prepared to accept that some serious delay would in the circumstances be inevitable, and propose to focus on the merits of his intended application,

15.Of the 3 grounds put forward by the Applicant for his intended challenge of the Board’s decision, they can in my view be conveniently dealt with together, for which his assigned counsel Mr Francis Ngan has put forward his skeleton argument dated 30 July 2024 which he also helpfully elaborated at the hearing, as they all lead to the fairly straight forward issue of whether the Board in deciding not to allow the late filing of the Applicant’s Notice of Appeal had properly and/or adequately taken account of the merits of the appeal or substance of his claim as part of the relevant matters of fact within its knowledge under Section 37ZT (2) of the Immigration Ordinance, as the law then was, and which was held to be relevant by 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, the decisions of which were then already available to the Board, and in which Lisa Wong J in giving the judgment of the Court in the latter case emphasized 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 as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.”

16.In the case of the Applicant now before me, the relevant part of the Board’s decision which appeared to have made any reference to the merits of the appeal is in paragraph 17 as follows:

“The Petitioner’s grounds of appeal stated in Section 2 of the Notice of Appeal/Petition only reiterated the same issues in his non-refoulement claim. The Director had carefully considered the petitioner’s claim and full reasons for rejecting his claim had been given in the Notice of Decision. Following the 3^rd state referred to in Begum, I evaluated all the circumstances in this case and arrived at the conclusion that it is fair and just to refuse the petitioner’s application.”

17.From the above it appears to me that the Board dealt with the merits of the appeal or the substance of the Applicant’s claim by merely relying on the fact that the Director had already considered and rejected the claim without making its own assessment or findings as regard the merits of the claim or the appeal adequately or at all, and as such it is in my view reasonably arguable 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 and/or the substance of his claim as part of the relevant matters of fact within its knowledge within the meaning of Section 37ZT(2)(b) of the Ordinance adequately or at all, thus meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

18.In the premises, and for the reasons given, I extend time to the Applicant’s late application and grant leave to him to apply for judicial review of the Board’s decision, and direct that he shall file and issue the 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 10^th day of October 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