IMRANELLAHI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 3251/2019

[2025] HKCFI 6329

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3251 of 2019

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of documents only;          or
	consideration of documents and the Applicant’s submission in open court.

1.  Extension of time to file the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 15 March 2017 be refused; and

2.  Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is the Applicants’ application by Form 86 filed on 31 October 2019 for leave to apply for judicial review (the “leave application”) of the decisions of the Torture Claims Appeal Board / Non-refoulement Petitions Office (the “Board”) dated 15 March 2017 and 25 October 2019 (respectively the “2017 Decision” and “2019 Decision”), dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his respective Notice of Decision dated 21 October 2014 and in his Notice of Further Decision dated 9 August 2017 (respectively, the “2014 Notice” and the “2017 Notice”) refusing the Applicant’s application for non‑refoulement protection.

The Applicant’s claim and procedural background

2.  The Applicant is a Pakistani national. His personal background, the factual background leading to the present application, the basis of his claim, the arguments he advanced, the finding of the Board and the reasons for its 2017 Decision[1] and 2019[2] Decision are set out in details in the Board’s Decision. The hyperlink to the Board’s Decision is included below for reference. The Applicant is a Shia Muslim. In gist, he claims, if returned to Pakistan, he will be harmed or killed by a Sunnis Muslims arising out of that person’s personal animosity against him.

3.  The Applicant’s claim was assessed on three applicable grounds then available under the Unified Screening Mechanism (the “USM”) and rejected by the Director via his 2014 Notice. The three applicable grounds were the Torture Risk ground under Part VIIC of the Immigration Ordinance, the BOR 3 Risk ground under article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (“BOR 3 Risk”) and the Persecution Risk ground under the 1951 Convention relating to the status of Refugees and its 1967 Protocol (the “Convention reasons”).

4.  About three weeks after the Board’s 2017 Decision was issued, the Director invited the Applicant to submit additional facts by 21 April 2017, if any, which he considered relevant to his non-refoulement claim on all applicable grounds for protection, including any other absolute and non-derogable rights under the Hong Kong Bill of Rights including right to life under Article 2 (“BOR 2”) in case he has omitted any relevant facts in relation thereto because of misunderstanding on what “all applicable grounds” means. Upon the application of the Duty Lawyer Service (the “DLS”) on his behalf, he was granted an extension of time until 5 May 2017 to make the submission. He was advised that if no submission was made, the Director would proceed to make the further decision without further notice. On 28 April 2017, the Applicant wrote direct to the Director stating that he wished to be screened under Article 2 of the Hong Kong Bill of Rights, but did not make any submission. On 9 August 2017, the Director issued the 2017 Notice refusing his application for protection under the BOR 2 Risk ground. The Applicant appealed. His appeal was dismissed by the Board’s 2019 Decision.

5.  He now applies for leave to apply for judicial review against both the Board’s 2017 Decision relating to the three applicable grounds and the 2019 Decision relating to his BOR 2 Risk ground.

Explanation for the delay in applying in relation to the 2017 Decision

6.  The leave application relating to the 2017 Decision was filed more than two years and seven months after the date of the 2017 Decision sought to be reviewed. Pursuant to section 21K(6) of the High Court Ordinance and Order 53, rule 4(1) of the Rules of the High Court, the leave application was lodged more than two years months and four months out of time. Extension of time to file the leave application is required.

7.  In AW and Director of Immigration and William Lam[3], the Court of Appeal held that the following factors are relevant in determining whether to grant leave to file an application for leave to apply for judicial review out of time: (1) length of the delay; (2) explanation for the delay; (3) merits of the substantive application; (4) prejudice to the applicant if leave is refused vis-à-vis that to the respondent and public administration if leave is granted; and (5) whether the application raises any questions of general public importance, and whether those questions are likely to have to be resolved by the courts in any event. Usually, the first three factors, particularly merits, are most crucial and determinative. If the sum total of these three factors are in favour of granting extension, the court would be more relaxed with the remaining two. Conversely, if it is against the granting of extension, there is no need to consider the remaining two factors. However, where an application is many months out of time, leave may be refused “however strong the complaint might otherwise be”, see Po Fun Chan v Winnie Cheung[4], per Litton PJ.

8.  The delay in this case so substantial that leave may be refused by reason of delay alone without considering the merits of the substantive application, unless the Applicant has a reasonable and credible explanation for the delay. At the hearing, the Applicant accepted that he was unable to provide any explanation for this very substantial delay. His leave application relating to 2017 Decision is therefore refused without consideration of merits.

The Board’s finding in respect of the Applicant’s claim under the BOR 2 Risk ground

9.  The Board which determined the Applicant’s appeal against the Director’s 2017 Notice was constituted of the same adjudicator who determined his appeal against the Director’s 2014 Notice. The ground of appeal advanced by the Applicant in his notice of appeal is essentially that he still have many problems in his home country and his life is in danger there. The Board considered that the problems he alleged in his notice of appeal had already been considered by the Board in its 2017 Decision. In the 2017 Decision, the Board found the Applicant not reliable, not truthful nor credible. It found his credibility had been shattered and his case should be dismissed. It found even on the basis of the case as he asserted, his persecutors were not government officials, the injuries he suffered were not for any of the purposes set out under section 37U(1) of the Immigration Ordinance and did not attain the minimum level of severity, he was not targeted by the Pakistani government and his fear of ill-treatment is not on account of a Convention reason. It also found reasonable state protection is available if resorted to upon his return to Pakistan and avoid the feared harm and risk of harm by internal relocation. Hence, even if the Applicant were believed, he is not entitled as a question of law to protection under the applicable three grounds. As no review had been sought against the 2017 Decision, that 2017 Decision is final. As the Applicant had advanced no additional material as required by the Director, the Board considered there was nothing to appeal or petition against. Accordingly, it dismissed his appeal.

The legal principles applicable to judicial review

10.  The function of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. 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. In an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[5].

Grounds for judicial review

11.  The Applicant had not advanced any grounds of judicial review in his Form 86 or supporting affirmation. At the hearing, after the above legal principles were explained to him, the Applicant confirmed that he had no complaint about error of law, procedural unfairness and irrationality in the Decision. In the absence of specific grounds of application, the Court in an application for judicial review could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision.

Overall scrutiny

12.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles applicable to non-refoulement protection under the Unified Screening Mechanism (the “USM”). The Applicant’s claim under BOR 2 Risk ground is based on the same facts as relied on by him under the three applicable grounds which had been rejected by the Board in its 2017 Decision. That decision is final. The Board’s finding of fact are binding on the Applicant. Hence, there is no evidence to support the factual basis of the Applicant’s claim under BOR 2 Risk ground. As the Applicant bears the burden of proof of his entitlement to protection, that finding must necessarily be fatal. Insofar as the Board’s application of the law to the facts is concerned, it is absolutely correct. There is no error of law.

13.  Though not so raised by the Applicant, he had expressed his wish to have a screening interview but the immigration officer ignored his request and made a determination. This may raise questions whether the immigration officer was in breach of procedural unfairness or failed in his duty of joint endeavor. At the time, he was legally represented by the DLS but the request for a screening interview was not made by the DLS.  The Applicant was required to produce information or evidence to support his claim under BOR 2 Risk ground within a time line. If he had information or evidence which he wished the immigration officer to consider, he should consult his duty lawyer to enable the DLS to make a proper submission on his behalf, rather than for him to make a request direct to the immigration officer. Putting that technicality aside, he had not indicated why he wanted a screening interview and what that interview was intended to achieve. Whether he is at risk is a fact only known to himself. While the immigration officer is under a duty of joint endeavor to assist him to make out his claim, the Applicant may not just sit there and do nothing. His wish to have a screening interview without any indication of the purpose of that interview was not enough to alert the immigration officer that there were issues for which the immigration officer’s assistance was required. The immigration officer’s failure to entertain his request did not in the circumstances raise any issue of procedural unfairness or irrationality. The Court could detect no error of law or procedural unfairness in the Decision. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. Basically, the Applicant failed to discharge his burden of proving his fears and risks. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success.

Conclusion

14.  For the above reasons, the Applicant’s leave application is refused.

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1