IBRAR UL HASSAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1347 /2020

[2024] HKCFI 895

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1347 of 2020

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of the documents only;            or
	consideration of the documents and oral submissions by the Applicant in open court;

1.  Leave to amend the Form 86 be granted;

2.  Extension of time to apply for leave for Judicial Review be refused; and

3.  Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 29 June 2020 for leave to apply for judicial review of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 28 June 2019 (the “Decision”) and an unidentified decision of the Director of Immigration (“Director”) relating to his non-refoulement claim.

2.  The Applicant did not identify the decision of the Director which he sought leave to judicially review. Enquiries with the Director and the Board revealed that he had lodged a claim for non-refoulement protection with the Director by way of a written representation dated 28 January 2014. That application was refused by the Director via his Notice of Decision dated 9 November 2017 (the “Notice”). On 23 November 2017, he filed a Notice of Appeal/Petition (“NOA”) against the Director’s decision in the Notice. On around 5 June 2019, he applied by letter to the Board to withdraw his appeal (the “withdrawal letter” and “withdrawal application”). Subsequently, his withdrawal application was allowed by the Board. The Board’s decision was conveyed to him by a letter dated 28 June 2019 which is the Decision he is now seeking leave to review. Hence, this Court is able to identify the Notice as the decision of the Director which he sought to review. However, while the Decision of the Board is reviewable by judicial process, the decision of the Director in the Notice is not because there are established statutory procedures of appeal to the Board and the Applicant has invoked those procedures. The Director’s decisions in the Notice was superseded by the Board’s Decision and is no longer susceptible to judicial review: Re Moshsin Ali[1]. To set the record straight, leave is granted to amend the Form 86 by identifying the Director’s decision as the Notice of Decision dated 9 January 2014.

3.  The Applicant did not ask for an oral hearing. Having regard to the nature of the application, the evidence, the issues raised, and all the circumstances, the Court considered pursuant to Order 53 Rule 3(3) of the Rules of High Court (Cap 4A) that this application may be justly determined on paper without a hearing.

Delay

4.  The leave application was filed one year after the date of the 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 made more than nine months out of time. Leave to file the leave application out of time is required.

5.  In AW and Director of Immigration and William Lam[2], 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. Merits is usually a very important factor. Where the delay is not very substantial, merits is usually the determinant factor. But it was also held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung[3] that where an applicant is many months out of time, leave may be refused “however strong the complaint might otherwise be”. The delay in this case is so substantial that in the absence of a reasonable explanation, leave may be refused on this ground alone. The Applicant never explained the delay in his Form 86 or his supporting affirmation. This Court could have given him directions to file evidence explaining his delay. But as the lack of merits in his leave application is so obvious, for expediency reasons, the Court goes straight into merits of the leave application.

Background

6.  In view of the issues raised by this leave application, there is no need to go into the details about the Applicant’s non-refoulement claim. In gist, he claims that he will be harmed by his paternal uncle if returned to Pakistan because of their land dispute. As outlined above, after the Director refused his claim, he lodged a NOA with the Board to appeal the Director’s decision in the Notice. Then before his appeal/petition was determined, he caused the withdrawal letter to be faxed to the Board to withdraw the appeal/petition. The relevant part of his letter reads:

“I want to Go Back to Pakistan…I am Safe to Go Home…I want to cancel all my non-refoulement claims…”

7.  On 13 June 2019, the Board informed him via the secretariat that the Board presumed he was applying to withdraw his appeal/petition against the Director’s Notice; and that he understood the consequence of the withdrawal, ie that his appeal/petition would be dismissed and the Director’s decision in the Notice would be confirmed; that the appeal would be disposed of and finally determined by the Board; and that no further action will be taken by the Board in relation to his appeal. The Board advised him to seek independent legal advice on the consequences of the proposed withdrawal and informed that if the Board did not receive any reply from him on or before 20 June 2019, it would consider approving his withdrawal application. The Applicant did not respond. By a the letter dated 28 June 2019, the secretariat informed the Applicant that the Board was satisfied that his application to withdraw the appeal/petition was freely sought and that he understood the consequences of the withdrawal; and hence it approved his application to withdraw the appeal/petition. This is the Decision which the Applicant now seeks leave to review.

8.  The Board did not find it necessary to consider the merits of the Applicant’s non-refoulement claim. Having advised him the consequences of his proposed withdrawal of the appeal/petition and to seek independent legal advice and upon his failure to respond, the Board was satisfied that his withdrawal was freely sought with the full understanding of the consequences. It was on the basis of those finding of fact that it approved the Applicant’s withdrawal. The decision of the Director in Notice became final.

Legal principles applicable to judicial review

9.  The role 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. 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[4].

Grounds for judicial review

10.  The Applicant did not advance any grounds for judicial review in the Form 86. In his supporting affirmation, the only complaint he raised was that he could not go back to his home country because his life will be in danger. His complaint is not about how the Board reached its Decision but the consequence of the Director’s Notice refusing his claim for protection. It must be understood that the purpose of a judicial review is to review the propriety of the decision maker’s decision in terms of errors of law, procedural unfairness or irrationality in that decision or the making of that decision. Hence, the consequences of the Director’s decision in his Notice refusing his claim for protection is wholly irrelevant to this leave application.

11.  In reply to the Court’s letter dated 27 February 2024 inviting for submission, the Applicant lodged a two page submission. The focus of his submission is that he is being detained in Tai Tam Gap Correctional Institute and he needs to be released from custody to collect evidence to submit to the Board. He did not mention what evidence he was seeking to obtain or what is the matter before the Board, but to the Court’s knowledge, he has no pending matters before the Board.

12.  As mentioned above, the Applicant has no complaint about the making of the Board’s Decision but rather the indirect consequence of that Decision, ie the Director’s decision in the Notice became final and binding on him. That is not a matter for judicial review. 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.

Discussion

13.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly and properly directed itself to the law and key legal principles relating to a decision maker’s approval of an application.

14.  In Ali Usman[5], the Court of Appeal held that the test for determining whether a withdrawal is valid is whether it was the result of a deliberate and informed decision. By the secretariat’s letter dated 13 June 2019, the Board informed the Applicant of all the consequences of the proposed withdrawal if approved. It advised him to seek independent legal advice. It gave him reasonable time to seek such legal advice and to re-consider in the light of the advice given by the Board and the possible independent legal advice he might have sought. It informed him that the Board would process his withdrawal application if it did not receive any response from him before 20 June 2019. He did not respond. In the circumstances, it was open to the Board to draw the inference that the Applicant intended the Board to continue processing his withdrawal application and that his withdrawal application was made out of his own free will with knowledge of all the consequences. These are finding of facts by the Board and the factual basis of the Board’s Decision. They are solely within the province of the Board which the Court in a judicial review will not interfere, save for errors of law, procedural unfairness or irrationality.

15.  By allowing his withdrawal application, the Applicant obtained what he asked for with full knowledge of all the consequences of the approval. The Applicant had no complaint about the making of the Decision. There is nothing to suggest he had not received the secretariat’s letter of 13 June 2019. He never objected to the withdrawal until 29 June 2020 when he filed the leave application. His only complaint is about the consequences of the withdrawal. He had been well advised of the consequences by the Board and had been advised to seek independent legal advice. This Court could detect no error of law in the Board’s Decision allowing his withdrawal application, or procedural unfairness in the making of the Decision. The Decision cannot be said to be irrational. That he later changed his mind has nothing to do with the lawfulness, fairness and rationality of the Decision. It is totally irrelevant to this leave application. The proposed judicial review has no prospect of success.

16.  For the above reasons, leave to amend the Form 86 be granted, no extension of time be allowed for filing the leave application, and the leave application as amended 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