KHAN AZMAT ULLAH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT

HCAL 668/2020

[2023] HKCFI 236

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 668 OF 2020

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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 23 September 2022 (the “Summons”) for extension of time to appeal the order of this Court dated 12 August 2022 (the “Order”) dismissing his application to re-open his application for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (the “Board”).

2.  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 was made. By 23 September 2022 when the Summons was filed, the time to appeal has lapsed. 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. Though this is an application to re-open an application to apply for leave to apply for judicial review and not an application to appeal a decision refusing leave, as the context is about leave to apply for judicial review, I accept the same principles are applicable.

LENGTH OF DELAY AND REASONS FOR THE DELAY

3.  The application was twenty-eight days out of time. It is substantial in the context of a fourteen-day appeal period. In his Summons and supporting affirmation filed on the same day, the Applicant made no complaint that he had not received the Order and Form CALL-1 timeously. He only sought to explain his delay on the basis of his leg injuries and the doctor’s recommendation to take rest and not to walk. He said he could produce medical evidence if required but did not provide any. His inability to walk may cause him some inconvenience but could not fully explain the extent of delay incurred. Nevertheless, the Court took that explanation into account in his application for extension of time.

PROSPECT OF SUCCESS OF THE INTENDED APPEAL

4.  The Applicant’s ground of appeal is that at the time he withdrew the Leave Application he would be safe to return to Pakistan as the government was under the leadership of Imran Khan. However, the circumstances changed with a change of government and the police suddenly dismissed his complaint against people threatening his safety. That was also the basis of his application to re-open his leave application which was considered by this Court. See paragraphs 9 to 13 of this Court’s decision dated 12 August 2022.

5.  As explained in paragraphs 7 and 8 of this Court’s decision dated 12 August 2022, the legal principle applicable to an application to re-open a leave application, as distinct from determining that leave application, is whether the withdrawal was a valid one – ie, whether it was the result of a deliberate and informed decision. If it was not, the withdrawal would be a nullity and the leave application would remain extant and may be re-opened. But if it was, the leave application has been validly withdrawn and hence is dismissed and no longer extant. The court which previously had jurisdiction over the application becomes functus officio and has no jurisdiction over the application. This principle is derived from the Court of Appeal decision in Ali Usman[2]. Although that decision was related to re-opening an appeal before the Board and not a leave application before the court, this Court cannot see how it could have erred in law in applying that principle to this case.

6.  On the basis of the facts as asserted by the Applicant, the only irresistible inference which this Court could draw was that his decision to withdraw the leave application was an informed decision made voluntarily. The withdrawal is valid and this Court has no jurisdiction to re-open the leave application: see paragraphs 9 to 14 of this Court’s decision dated 12 August 2022. The facts were based on the Applicant’s own evidence which he could not dispute. The inference is compelling and overwhelming. This Court cannot see how it could have erred or criticized in drawing that inference.

7.  Having now rigorously re-examined the Board’s Decision and the decision of this Court dated 12 August 2022 with anxious scrutiny, this Court is satisfied that there are no errors of law, procedural unfairness or irrationality in these decisions. This Court is satisfied that the Applicant’s grounds of intended appeal are wholly unarguable. His intended appeal has no prospect of success.

PREJUDICE TO THE RESPONDENT

8.  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

9.  The Applicant’s intended appeal has no prospect of success. To allow him leave to challenge a decision which is out of time and has no prospect of success is likely to cause serious prejudice to the intended respondent. The length of delay is substantial and unexplained. Even giving him the benefit of a doubtful explanation, it has little bearing in this application. Accordingly, his application for extension of time to appeal is refused.