Re Akhtar Naeem

HCAL 449/2019

[2022] HKCFI 2230

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 449 OF 2019

____________________

____________________

Before:  Deputy High Court Judge To in Chambers

Date of Decision:  28 July 2022

______________

D E C I S I O N

______________

INTRODUCTION

1.This is the Applicant’s application by summons filed on 15 June 2022 (the “Summons”) for extension of time to appeal my order dated 18 May 2022 (the “Order”) refusing his application for leave to apply for judicial review of the decision of the Torture Claims Appeal Board/Adjudicator of the Non-Refoulement Claims Petition Office (the “Board”) dated 12 February 2019 (the “leave application”).

THE LAW

2.In Jagg Singh v Torture Claims Appeal Board / Non-Refoulement Claims Petition Office[1], the Court of Appeal held that what may constitute a good reason for extending time cannot be defined. In most cases, this would be a “multi-faceted question” the answer to which would depend on the circumstances of each case.  The following factors, which are not exhaustive, are likely to be of significance in determining whether to grant extension of time:

(1)  length of delay;

(2)  reasons for the delay;

(3)  prospect of success of the intended appeal; and

(4)  prejudice to the respondent if extension of time was granted.

LENGTH OF DELAY AND REASONS FOR THE DELAY

3.By 15 June 2022 when the Summons was filed, 28 days had lapsed since the date of the Order.  The application is 14 days out of time, which is substantial in the context of a fourteen-day appeal period.

4.The Applicant did not give any explanation for the delay in filing his notice of appeal.  Though the delay is substantial, it is not so substantial as should deprive him of the chance to appeal, if he can demonstrate a good prospect of success.  This Court did not find it necessary to explore with him the reason for the delay and is prepared to condone the delay, if he can show good prospect of success in his intended appeal.

PROSPECT OF THE INTENDED APPEAL

5.The Applicant’s sole ground of appeal as stated in his supporting affirmation is that “the decision is not according to the international law of Human Rights UNO Convention and Protocol”.  But he gave no particulars of the provisions of the international law which this Court has breached.  He did not even properly identify the convention which he sought to rely on.  For reasons as explained below, it is not necessary to seek the particulars from him.

6.A claimant’s right to non-refoulement protection is derived from local legislation and not international conventions and protocols which are not enforceable in the local courts, though they may form the underlying principles and standards observed by the local courts.  In Hong Kong, a claimant may obtain protection if he can prove his entitlement under one of the four applicable grounds under the USM.  The Director of Immigration in the first instance and the Board on appeal determine if on the fact the claimant has discharged the burden of proving his entitlement.  Their decision is basically a fact finding process.  As stated in paragraph 20 of the Form Call-1, they alone have the power to make finding of facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  This Court has no fact finding functions in a judicial review.  Its role is not to re-assess the non-refoulement claims afresh.  It will only scrutinize the Board’s decision, and intervene by way of judicial review, for errors of law, procedural unfairness or irrationality:  see Nupur Mst v Director of Immigration[2].

7.The decision of this Court is that after rigorous examination of the Board’s Decision, it could not find any error of law, procedural unfairness or irrationality in the Decision.  In essence, this Court approved the Decision of the Board.  If the decision of this Court is in violation of any provisions of international law, such violation must have originated from the Board’s Decision.  However, the Applicant’s grounds for judicial review as quoted in paragraph 21 of the Form Call-1 is that the Board’s Decision is unfair in failing to take into account the threat to his life in his home country.  The substance of his complaint was against the Board’s finding of fact that his life would not be at risk if returned to Pakistan.  He had no complaint that the Board was in breach of any provisions of international law.  It is impossible to see how in approving the Decision against which there was no complaint of breach of international law that this Court could have been in breach of international law.  Apart from want of particulars, there is no substance in his ground of appeal.  The Applicant has no arguable grounds of appeal.  His intended appeal has no prospect of success.

PREJUDICE TO THE RESPONDENT

8.The prejudice to the proposed respondent and to public administration if a challenge is allowed to proceed is obvious.  The delay is by itself an abuse of the process of the court and the non-refoulement protection arrangement.  To allow the challenge to proceed would encourage other claimants to indulge in such abuse.  It would cause unnecessary waste of judicial and public resources and delay the genuine non-refoulement claimants’ access to the court.  It would render it difficult for the Director to perform his duty of maintaining immigration control.  Above all, it would make it difficult or unduly burdensome for Hong Kong to honour its international obligations under the various conventions to protect people from persecution, torture and other cruel, inhuman or degrading treatment or punishment.  This application does not raise any questions of general public importance.  Allowing the application may subject the whole system of non-refoulement protection to serious abuse to the prejudice of Hong Kong.

CONCLUSION

9.The Applicant has no arguable grounds of appeal and has no valid explanation for the substantial delay.  His intended appeal has no prospect of success.  To allow such an un-meritorious challenge to proceed would be prejudicial to the intended respondent and the administration.  Accordingly, the application for extension of time to appeal is refused.

The applicant is not represented