ABDUL RAUF HARIS v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 424/2020

[2025] HKCFI 3166

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 424 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;

The applicant’s application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

Introduction

1.  By prescribed Form 86 filed on 16 March 2020, the applicant applied for leave to apply for judicial review (“Leave Application”). The intended judicial review was against the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) dated 23 March 2018 (“Board’s Decision”) dismissing the applicant's appeal against the decisions of the Director of Immigration (“Director”) dated 26 November 2015 and 21 November 2016 (“Director’s Decisions”) rejecting the applicant's non-refoulement claim on all applicable grounds. The Board’s Decision can be viewed at the following hyperlink: -

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000424_2020_files/the_Board's_Decision.pdf

2.  The basis of the applicant’s claim was that he would be harmed or killed by the Pakistan Muslim League (N) (“PML(N)”) supporters due to his support for the rival Pakistan People’s Party (“PPP”) and his refusal to vote for the PML(N) in the local election in 2015. The Board’s reasoning and findings were set out in detail in the Board’s Decision and it is not necessary for me to repeat them. Unless otherwise specified, I shall also adopt the Board’s abbreviations and descriptions stated in the Board’s Decision.

3.  At the applicant’s request for a hearing of the Leave Application, this court scheduled a hearing on 27 May 2025. The applicant was in custody and was brought by the Correctional Services Department to attend the hearing in person. After having heard from him, this court informed him that the decision would be reserved, and be sent to his updated address.

Discussion

4.  The Leave Application operates as a ‘filtering’ process and there is no requirement or expectation to give elaborate reasons for my decision.[1] It is sufficient to state my observations after considering the Board’s Decision and the applicant’s materials adduced.

5.  In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly[2], and further to make full and frank disclosure of all material facts to be verified by an affidavit.

6.  In his Form 86, the applicant raised the following grounds for judicial review:

(a)  The Board’s Decision was unreasonable and unfair;

(b)  Insufficient importance or weight was given to state acquiescence;

(c)  Though the Director listed relevant country of origin information (“COI”) that supported the applicant’s belief that the police in his country would not be able to protect him, such COI was not considered or given enough weight;

(d)  The Director showed an unfair attitude, and failed to meet the required high standards of fairness.

7.  However, the applicant did not provide any particulars in support of his grounds.

8.  At the hearing, this court asked the applicant whether he had any further grounds he wished to submit in support of the Leave Application. The applicant submitted two hand-written letters to this court. One was a request for bail, and the other one was his written submissions. This court explained to him that his court could not deal with his request for bail. As for the written submission, the applicant mainly repeated the evidence that was already placed before the Board. The only new matter was the reference to the alleged killing of his uncle by the PML(N) in December 2023. The applicant further submitted that the PML(N) members also killed the family of his second uncle in Sialkot City. At the time of the writing, he was not sure if his family back home was still alive or not. He asked to be given a chance to stay in Hong Kong.

9.  As the Courts have repeatedly stated, a finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality.[3] In the present case, the Board found that the applicant’s evidence given at the hearing was vague and very general, and he was unable to provide any coherent details about the election campaign he claimed to have worked on. In the Board’s view, his lack of knowledge of these matters cast considerable doubt on his claim that he had a prominent role in his uncle’s political campaign. Thus, the Board did not accept that there would be a real risk that PML(N) members, or anyone else, would target the applicant for violence. The Board also found that internal relocation would be viable. The Board therefore rejected the applicant’s appeal and confirm the Director’s Decision. These are findings of fact, which the court in a judicial review will not interfere with, subject to there being any public law errors.

10.  Bearing in mind the enhanced standard that should be adopted in scrutinizing the Board’s Decision, this court is satisfied that the Board correctly applied the law relating to all the grounds and observed a high standard of fairness. The applicant’s written grounds and submissions are not concerned with any alleged errors of the Board’s Decision. Importantly, they do not condescend to any particulars. In the circumstances, this court is not satisfied that the applicant has shown any errors of law or procedural unfairness or irrationality in the Board’s Decision. The applicant’s intended challenge to the Board’s Decision is not reasonably arguable with realistic prospects of success such that would enable this court to grant leave[4].

Whether to grant extension of time

11.  More importantly, there is a substantial delay in the Leave Application. Pursuant to O 53 r 4(1) of the Rules of the High Court, an application to apply for judicial review shall be made promptly and in any event within 3 months from the date when grounds for the application first arose. Hence, the deadline for the filing of the Leave Application had expired on 23 June 2017, and this application is late for 1 year and 9 months.

12.  Before considering whether I should exercise my discretion for an extension of time, I should have regard to, among others, (i) the length of the delay; (ii) the reason for the delay; and (iii) the prospect of success of the intended challenge. The delay in the present case is significant and inordinate. Very good reason is required to explain for the delay.

13.  At the hearing, this court inquired from the applicant his reason for the delay. The applicant stated on 24 January 2018, he was arrested by the police for the offence of trafficking in dangerous drugs, and detained in Lai Chi Kok before the Board’s Decision was delivered. The applicant therefore said that he did not receive the Board’s Decision posted to his residential address. He was convicted and sentenced to a term of imprisonment. Upon his release from imprisonment on 24 January 2020, he was transferred to the Immigration detention center at Castle Peak until 20 April 2020. He said that in around March 2020 while he was detained in the Castle Peak detention center, the Immigration Department passed the Board’s Decision to him. An inmate there gave him the contact details of a lawyer who helped him prepare the documents and file the Leave Application.

14.  According to the applicant, he had a wife in Hong Kong. Hence, even if he were in the custody of Lai Chi Kok detention center, I believe that his wife or people living in the same address would have likely brought to his attention of the Board’s Decision. Further, when the applicant was serving prison sentence, the Immigration Department would have had knowledge of it because the applicant but for the imprisonment would have been required to report to the Immigration Department regularly. Since the Director was also served with a copy of the Board’s Decision, I find the applicant’s explanation that the Immigration Department had not given him the Board’s Decision during his time of imprisonment is unconvincing. I therefore reject his explanation and conclude that the applicant has failed to provide any good reason for the delay.

15.  Since the applicant’s intended challenge lacks merits, I am disinclined to allow the extension of time.

Order

16.  The applicant’s application for leave to apply for judicial review be dismissed.

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