Case Document

100%Judiciary

HCAL 2742/2018

[2021] HKCFI 2247

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2742 OF 2018

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RE:

AKRAM FAISAL

Applicant

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Before: Deputy High Court Judge K.W. Lung in Chambers

Date of Decision: 10 August 2021

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D E C I S I O N

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The application

1.The applicant is an illegal immigrant. He lodged a non-refoulement claim with the Director of Immigration (the “Director”). The Director, by his Decision, rejected his application and he appealed to the Torture Claims Appeal Board (the “Board”). However, on the day of hearing, he wrote a letter to the Board to withdraw his appeal on the reason that he considered it was safe to return to his country. The Board, having confirmed that his decision was freely made and that he understood the consequences of his application, approved his application for withdrawal, the consequence being that the Board became functus officio.

2.One year later, the applicant applied to the Board to re-open his case. The Board refused his application and explained to him that his appeal had been dealt with by its earlier decision to approve his application for withdrawal of his appeal and that the Board had ceased its function on the matter (the “Board’s Decision”).

3.Pursuant to Order 53, rule 3(2) of the Rules of the High Court (“RHC”), the applicant filed Form No. 86 to apply for leave to apply for judicial review of the following matters:

(i) The decision of the Director dated 28 June 2017;

(ii) The Board’s approval of his application for withdrawal of his appeal made on 23 October 2017;

(iii) The applicant’s own un-dated letter for re-opening of his appeal; and

(iv) The Board’s Decision.

4.The applicant had appeared before the Court where he submitted to the Court that he was coerced to withdraw his appeal before the Board.

5.The Court had considered his submission and dismissed it as implausible and unacceptable.

6.By Order dated 29 June 2021 (the “Court’s decision”), the Court dismissed his application for the reason that the Board had made no decision, which could form the subject matter of judicial review.

7.The applicant filed a summons dated 19 July 2021 applying for extension of time to appeal against the Court’s decision.

8.In his affirmation in support of his application, he said that he did not understand the Court’s decision or the legal procedure for appeal and he asked for an extension of time. He submitted that the Court should not refuse his application, given the non-excessive amount of time as well as the language and cultural differences. He further complained that the Court had not made reasonable arrangements to enable him to understand the content of the judgment, thereby depriving him of the right to seek further avenues of appeal.

Discussion

9.Pursuant to Order 32, rule 11 and 11A of the RHC, having considered the applicant’s reasons, I decide to determine this application without an oral hearing.

10.As can be seen from the authorities below, the Court will first consider the merit of his intended appeal. The Court of Appeal in Re: Sattar Abdul [2019] HKCA 613, 4 June 2019§13 held:

“…. high standards of fairness do not demand interpretation service being made available all the time to a non-refoulement claimant.”

11.In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27, the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted.

12.In Re Adumekwe Rowland Ejike [2019] HKCA 702, the Court of Appeal held:

“19. The prospect of success of the intended appeal is important: the court will not grant extension for a hopeless appeal to be pursued, see Re Rahman Wasif [2019] HKCA 299 at [13]; Re Kpamou Gbotoi Bernard [2019] HKCA 168; and Re Irshad Muhammad [2018] HKCA 864 at [16].”

13.The Court of Appeal in Re Das Purnima Rani [2019] HKCA 669, 13 June 2019 held:

“41…. …Once the Board dismisses an appeal against the Director’s refusal of a non-refoulement claim upon a valid withdrawal or abandonment of the appeal by the claimant, in the sense of being the result of a deliberate and informed decision, the appeal is no longer extant and the Board becomes functus officio with no jurisdiction to take any step regarding the appeal. … …s 37V(2)(b) of the Ordinance stipulates that a torture claim rejected by the Director is finally determined when the appeal against it, if one were lodged, was disposed of. Notwithstanding the lack of determination on the merits, the dismissal of an appeal on its withdrawal nevertheless disposed of the appeal. Otherwise, not only would there be no finality in the determination of such claims, much room would be created for abuse by claimants desirous of delaying their removal from Hong Kong by making last minute withdrawals and then subsequently applying for reinstatement of the appeals. …

42. The only option left to the claimant who has validly withdrawn his appeal to the Board is to make a fresh non-refoulement claim under s 37ZO(2) if he can fulfil the requirements in sub-ss (a) and (b) thereunder…. …”

14.Although the Court held that the Board had made no decision as he withdrew his appeal, it is quite apparent that he was seeking to have judicial review of the Board’s decision not to re-open his appeal. On the basis of the Court of Appeal’s decision above, the applicant has no ground to challenge the Board’s Decision. He had explained to the Court that he made his decision under coercion. However, the Court rejected his explanation. His withdrawal was therefore valid. The only option will be for him to make a fresh non-refoulement subject to the conditions as expressed by the Court of Appeal.

15.The applicant is unable to show that he has any reasonable prospect of success in his intended appeal.

16.In the circumstances, I refuse to extend time for his appeal. Accordingly, I dismiss his application.