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

HCAL 1564/2020

[2024] HKCFI 1321

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1564 OF 2020

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DECISION

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Introduction

1.  This is the Applicant’s application by summons filed on 27 February 2024 (the “Summons”) for extension of time to appeal the order of this Court dated 11 December 2023 (the “Order”) refusing to grant him leave to apply for judicial review of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Decision”).

2.  In his Summons and supporting affirmation, the Applicant claimed he had never received the Order but only learned in a criminal proceeding against him in Shatin Magistrates Court on 23 February 2024 that his leave application had been refused. By then, the time to appeal has expired. He claimed he wanted to appeal because he had severe problems in his home country and if he returned to his home country he will be killed by his enemies. To assist him in presenting a proper application, this Court gave him directions by letter dated 7 March 2024 to file a statement within 14 days of the letter stating the date and circumstances when he received the Order or information about the outcome of his application for leave to apply for judicial review; and the grounds of his judicial review. He was also informed that his application for extension of time will be determined on paper without a hearing whether he has complied with the above directions or not. By 19 April 2024, almost six weeks since the date of the directions, he did not respond.

3.  Accepting his explanation on its face value (even without asking for evidence of his attendance in the Shatin Magistrates Court), he has not stated the grounds of his intended appeal. By a further direction on 19 April 2024, the Applicant was given a further chance to state his grounds of appeal by 26 April 2024. This time, he responded. He just repeated that he has severe problems in his home country, his enemies are still looking for him and he will be killed by his enemies if he returned.

4.  In substance, the Applicant is repeating the grounds of his application for non-refoulement protection, which had been rejected by the Director of Immigration and again by the Torture Claim Appeal Board/ Non-Refoulement Claims Petition Office (the “Board”). His grounds of appeal are in essence a direct challenge of the Board’s finding of facts on which its Decision was based. That is not permissible in an application for judicial review. For good reasons which the Board gave, the Board found the Applicant incredible and that he had failed to discharge the burden of proving his claimed fear of harm and risk of harm even to the low standard required: see paragraphs 22 and 23 of the Form CALL-1.

5.  This Court had examined the Decision with anxious scrutiny and was unable to find any errors of law in the Decision, procedural unfairness in non-refoulement proceedings and irrationality in the Decision: see paragraph 26 of the Form CALL-1. Despite a further chance having been given to the Applicant to state his grounds of appeal, he has not advanced any good or valid grounds for challenging this Court’s reasons for refusing his application for leave to apply for judicial review. All that he put forward is his disagreement with the Board’s finding of fact and adverse finding of his credibility. None of these constitutes a valid reason for challenging this Court’s decision. This Court could only come to the conclusion that he has no valid grounds for appeal and his proposed appeal has no prospect of success. Hence, extension of time to file the appeal is refused.

6.  The Applicant has a history of not attending the Court’s and Board’s hearing. He also has a history of delay. His application for leave to apply for judicial review was filed almost eight months out of time. His application for extension of time to appeal is late by more than two months. His legal aid application was made after service of the notice of hearing of his leave application and he did not appear at the hearing. These delays are noted in paragraphs 6 and 7 of the Form CALL-1. Though the Court does not find it necessary to rely on such conduct in making this decision, such conduct does carry the hallmark of deliberate delay of his refoulement process.