KAMRAN v. DIRECTOR OF IMMIGRATION

HCAL 501/2017

[2021] HKCFI 971

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 501 OF 2017

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DECISION

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Introduction

1.  This is the Applicant’s application by summons dated 17 November 2020 for extension of time to appeal the decision of Deputy High Court Judge Woodcock dated 8 May 2018 (the “Decision”) or to reconsider his application for leave to apply for judicial review afresh.  The reason he put forward in the summons was he had changed his home address and hence could not receive the court’s letter.

2.  He departed Pakistan for Mainland China and then illegally entered Hong Kong on 1 November 2012.  He was arrested on 24 April 2013 for having remained in Hong Kong after entering unlawfully and for using an identity card belonging to another.  He lodged a non-refoulement protection claim.  That was rejected by the Director of Immigration (the “Director”).  His appeal to the Torture Claims Appeal Board (“TCAB”) was dismissed on 28 July 2017.

3.  Then he filed a notice of application for leave to apply for judicial review on 8 August 2017.  He had an oral hearing on 2 January 2018.  On 8 May 2018, DHCJ Woodcock refused his application.

4.  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 22 May 2018, the time to appeal has expired.  The application for leave to appeal is two and half years out of time.  The delay is grossly inordinate.

5.  In Jagg Sing 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 against 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 an extension of time were granted.

Length of the delay and reasons for delay

6.  In his affirmation in support, the grounds he advanced in support of his application are that the decision of the Torture Claims Appeal Board and the Decision of DHCJ Woodcock are all unlawful.  He gave no explanation for the inordinate delay of over two and half years or particulars of his change of home address, the circumstances and when he came to know about the Decision.  Rather than dealing with his application on paper or giving directions for filing of further affirmation, I set the application down for an oral hearing so that the merits of his application could be fully explored.

7.  At the hearing, the Applicant just apologised and repeated his assertions in his affirmation.  When specifically asked why he took such a long time to apply, he said he received the letter from court notifying him of the result late and he had to ask his friend (presumably about the content of the letter or the Order of DHCJ Woodcock).  In an attempt to assist him to make out his case of having moved before the date of the Order of DHCJ Woodcock, he was asked about his addresses at various times.  He was confused and unable to answer.  Hence, I adjourned the hearing and gave direction for him to file an affirmation setting out his various addresses since 28 July 2017, ie the date when TCAB dismissed his appeal against the decision of the Director.  The address he used on that day as well as on his application for leave to apply for judicial review filed on 8 August 2017 was Flat/Room C, 3^rd floor, Sum Ming Building, 264-270 Yu Chau Street, Sham Shui Po (the “Sum Ming Building Address”).

8.  The Applicant did not file an affirmation as directed, but wrote to the court on 7 April 2021.  In the letter, he gave four addresses.

9.  He said he lived in an address in Fuk Wa Street during the period from 2016 to May 2017.  This address is irrelevant.  It was his address before he applied for leave to apply for judicial review. 

10.  He said he next lived at the Sum Ming Building Address from June 2017 to March 2018, which covered up to two months prior to the issue of the Order of DHCJ Woodcock.

11.  The next address he gave is an address in Castle Peak Road which he used from April 2019 until to-date.  He deliberately left out the address for the period from March 2018 to March 2019 when the Order of DHCJ Woodcock was issued.  The Applicant is not entirely honest with the court in explaining his delay of two and half years.  He has not given any satisfactory reason for the delay.

12.  Even accepting (which is not the case) the Applicant had really changed his address and could not have received the Order of DHCJ Woodcock, this does not excuse the Applicant.  As was held in Re Karamjit Singh^[2], it is the duty of a litigant/claimant to give the authority an address to which correspondence or notice can come to his attention in a timely manner.  The consequence of any delay occasioned by the ineffectiveness of such an address would fall on the shoulder of the litigant/claimant: see Islam Raja Rais v Director of Immigration^[3], Said Umair v Torture Claims Appeal Board^[4] and Re Saqlain Muhammad^[5].

Prospect of the intended appeal

13.  The Applicant’s case is as follows.  He was born in 1985 in Punjab.  In mid-2012 when he was in his late twenties, he was kidnapped by the Taliban who forced him to join them and he would become a terrorist planting bombs for the Taliban.  He escaped and returned home.  He felt he was being sought after by the Taliban.  He took his family to his parents-in-law’s home.  He continued to be mentally tortured by the fear that the Taliban would locate him.  Then he fled to Hong Kong.

14.  The Director as did the TCAB analysed the Applicant’s case and considered his claim under all applicable grounds.  DHCJ Woodcock considered with rigorous examination and anxious scrutiny the papers and grounds of the Applicant’s application and submissions. She was satisfied that the Director and TCAB had considered the Applicant’s claim under all four applicable grounds.  In particular, she was satisfied that TCAB had correctly set out the law and key legal principles applicable to the four grounds.  The TCAB had set out the evidence of the Applicant and the TCAB’s assessment of his credibility.  It found his account of having been kidnapped by unnamed terrorists implausible and gave full reasons for its conclusion after set out the material inconsistencies in his evidence.  The TCAB found he was not a genuine claimant and there were other inconsistencies in his account which undermined his credibility leading the TCAB to conclude that he had not been kidnapped or harmed by a terrorist group.  The TCAB therefore concluded that if he returned to Pakistan, he would not be harmed by terrorists.  DHCJ Woodcock was satisfied that the TCAB’s decision was utterly without fault and there was no substance in the Applicant’s grounds in his application for leave for judicial review.

15.  The role of the court in judicial review is not to re-assess the non-refoulement claim afresh.  The primary decision-makers in a claim for non-refoulement are the Director and the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office.  They alone assess the evidence and find 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.  The court will scrutinise the TCAB’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[6].

16.  An application for judicial review is not a rehearing of the decision of the TCAB.  It is for the Applicant to raise grounds warranting relief on judicial review.  At the hearing before me, the Applicant merely repeated his bald assertions that all the decisions were unlawful and his life would be in danger if returned to Pakistan.  Having critically scrutinised the TCAB’s decision as had DHCJ Woodcock, I am unable to find any arguable errors of law, procedural unfairness or irrationality on the part of the TCAB.  In my view the intended appeal has no prospect of success.

Prejudice to the respondent

17.  As for prejudice to the proposed respondent, it is unlikely that this issue would be explored in an ex parte application for extension of time.  But it would take little to persuade the court the prejudice to the proposed respondent and to public administration if a challenge is allowed to proceed after such a gross inordinate delay of two and half years.  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.  It may subject the whole system of non-refoulement protection to serious abuse to the prejudice of Hong Kong.

Conclusion

18.  In summary, the delay of two and half years in making this application is inordinate and by any standard undue.  The Applicant could offer no credible valid explanation for the delay. 

19.  On the question of merit of the substantive application, I am unable to find any ground that shows there was any error of law by the TCAB or irrationality in its fact finding.  There was no procedural unfairness.  Indeed, the court is of the view that the TCAB adhered to a high standard of fairness.  The TCAB’s decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable.  The Applicant’s claim is not reasonable arguable.  The intended appeal has no realistic prospect of success. 

20.  To allow the challenge to proceed would encourage other claimants to indulge in such abuse and create grave prejudice to the intended respondent and to the administration. The Applicant only has himself to blame for the delay.

21.  For all these reasons, the application for extension of time is refused.