Ali Imran v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 59/2019

[2023] HKCFI 273

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 59 OF 2019

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D E C I S I O N

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INTRODUCTION

1.This is the Applicant’s application by summons filed on 21 November 2022 (the “Summons”). The Summons was drafted in very vague terms. Together with the supporting affirmation filed on the same day, it is understood to be an application for extension of time to appeal an unidentified order presumably of this Court (the “alleged order”) dismissing his application for “leave to appeal for judicial review” (the “Leave Application”) of an “unidentified decision”. As the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (the “Board”) and the Director of Immigration (the “Director”) are named as defendants, in that context, the “unidentified decision” must refer to the Board’s decision dated 24 December 2018 (the “Decision”) refusing the Applicant’s appeal against the decision of the Director in his Notice of Decision dated 30 October 2017 refusing his claim for non-refoulement protection.

2.The “alleged order” which the Applicant sought to appeal was not identified by a date. In fact, no order had been made to dismiss the Applicant’s Leave Application. What happened was the Applicant made the Leave Application by way of Form 86 on 8 January 2019 seeking to apply for leave to apply for judicial review of the Board’s Decision. Then, on 11 May 2021, about two years and four months later, he filed an affirmation seeking to apply to withdraw his Leave Application (the “Withdrawal Affirmation”). In the Withdrawal Affirmation, he affirmed that it was safe for him to return to Pakistan. Having duly reviewed the Board’s Decision, his Withdrawal Affirmation and all the papers, this Court was satisfied that the application to withdraw was voluntarily made and it was safe for him to return to Pakistan. On 17 May 2021, this Court made an order allowing his Leave Application to be withdrawn. Properly understood, this is the order which the Applicant now seeks to appeal out of time (the “Order”). To tidy up all these loose ends, leave was granted to amend his Summons making it an application for leave to appeal the Order of this Court dated 17 May 2021 out of time.

3.Under Order 53, rule 3(4) of the Rules of the High Court, where an application for leave to apply for judicial review is refused by a judge, the applicant may appeal against the judge’s order to the Court of Appeal within 14 days after such order. By 21 November 2022 when the Summons was filed, it is almost one and a half years out of time. In Jagg Singh and Torture Claims Appeal Board / Non-refoulement Claims Petition Office[1], the Court of Appeal held that in considering whether to extend time for appealing a decision refusing leave to apply for judicial review, the court will take into account: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if extension of time was granted.

LENGTH OF DELAY AND REASONS FOR THE DELAY

4.In his Summons and supporting affirmation filed on the same day (the “Appeal Affirmation”), the Applicant’s explanation for the delay and his grounds for making the application are that his problem is “not finished” or “not solved” and it is unsafe for him to return to Pakistan. On the other hand, previously he made a contrary assertion in his Withdrawal Affirmation that it was safe for him to return to Pakistan.

5.The essence of his claim for non-refoulement protection is that he had religious problems with Qari Wajid who hit and threatened to kill him in Dubai. After he returned to Pakistan, Qari’s brother attacked him and threatened to kill him. The Board had serious concerns about aspects of the Applicant’s case and the documents he submitted. It found the Applicant incredible and was prepared to exaggerate in order to advance his claims: paragraph 101 of the Decision. Even accepting that the Applicant is a Shia Muslim who worked for some time in the United Arab Emirates and had a fight there with a Sunni Muslim over religious doctrine, it does not accept he was targeted in a shooting incident two days after his return to Pakistan. It does not accept that a Wahabi man named Qari had a vendetta against him, or that Qari arranged for his brother to try to kill him. The Board did not accept that the shooting incident happened. Consequently, the Board was not satisfied that the Applicant would face any real or substantial threat of serious or significant harm for the reasons as stated in his claims should he return to Pakistan in the reasonably foreseeable future. The Board also found in the alternative that even if it had doubts about its finding, which it did not, the Applicant could relocate to other areas in Pakistan to avoid the risk. Hence, the Board found it was safe for the Applicant to return to Pakistan and dismissed his claims. These are finding of facts by the Board. The Applicant’s reason for withdrawing the Leave Application as stated in his Withdrawal Affirmation is therefore consistent with the Board’s finding and credible.

6.The Applicant gave no particulars or reasons as to how, when and why his problem which he once said under affirmation was solved one year and six months ago has now become unsolved. Not only is his Appeal Affirmation incredible, it does not even explain the delay in appealing. He has no reasonable explanation for the delay in appealing.

PROSPECT OF SUCCESS OF THE INTENDED APPEAL

7.Insofar as his assertion in the Appeal Affirmation is treated as his grounds of the intended appeal, it is wholly unarguable. The order allowing his Withdrawal Affirmation was made at his request because he had affirmed that it was safe for him to return to Pakistan, at least then even if it were not now. The Withdrawal Affirmation was on the face voluntarily made. Not only has the Applicant made no allegation to the contrary, he also made no allegation that the order was a nullity or was vitiated by fraud, duress, misrepresentation, mistake or other vitiating elements. His assertion in the Appeal Affirmation cannot be a valid ground of appeal.

8.I shall now take a step further by examining the substance underlying the Applicant’s intended judicial review which he sought to restore by his intended appeal. The Applicant’s ground of intended appeal or intended judicial review is that it is still unsafe for him to return to Pakistan. This is also the essence of his claim for non-refoulement protection which had been rejected by the Board. The primary decision-makers in a non-refoulement claim are the Director and the Board. Finding of fact is solely a matter within the province of the Board. In a judicial review of the Board’s decision, the court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[2]. The grounds for judicial review given by the Applicant as stated in his supporting affirmation dated 8 January 2019 were essentially a repetition of his case before the Board. He made no complaints about errors of law, procedural unfairness or irrationality in the Board’s Decision. Basically, he was seeking to challenge the finding of fact by the Board under the guise of judicial review. This is not permissible.

9.I had rigorously examined the Decision, the papers and all the evidence with anxious scrutiny and was satisfied that the Decision had not been tainted by errors of law, procedural unfairness or irrationality. I could find no arguable grounds for challenging or even doubting the Board’s finding of fact. I could have no reason to doubt he would be safe to return to Pakistan as asserted in his Withdrawal Affirmation. The reason he gave in support of his Withdrawal Affirmation is also consistent with the Board’s finding. The Applicant’s intended judicial review has no prospect of success. Accordingly, his intended appeal has no prospect of success.

PREJUDICE TO THE RESPONDENT

10.The prejudice to the proposed respondent and to public administration is obvious, if his application is allowed. It is a clear abuse of legal process to challenge a decision without proper and good grounds of appeal and which is bound to fail. To allow such a challenge to proceed when it is already out of time would encourage other claimants to indulge in such abuse and create prejudice to the intended respondent and to the administration. 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. Allowing his application may subject the whole system of non-refoulement protection to serious abuse to the prejudice of Hong Kong.

CONCLUSION

11.For the above reasons, leave was granted to amend the Summons and the application by the Summons as amended for extension of time to appeal the Order of this Court dated 17 May 2021 is refused.

The Applicant is not represented