RIAZ RASHID v. NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 889/2020

[2025] HKCFI 5182

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 889 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 the Applicant being absent in open court

(1)  Form 86 be amended, naming only the Non‑refoulement Claims Petition Office and the Director of Immigration as the Putative Respondent and the Putative Interested Party respectively.

(2)  No extension of time be granted for the making of the application for leave to apply for judicial review, and the application herein be dismissed.

Observations for the Applicant:

Introduction

1.  By Form 86 (“Form 86”) filed on 13 May 2020, the Applicant seeks leave to apply for judicial review (“the Leave Application”) of the Non-refoulement Claims Petition Office’s decision dated 10 September 2018 (“the Adjudicator’s Decision”), confirming the Director of Immigration’s decision dated 7 March 2017 (“the Director’s Decision”). Unless otherwise specified, I shall adopt the abbreviations and descriptions used in the Adjudicator’s Decision, the hyperlink to which is included below[1].

Discussion

2.  The Applicant is absent from the oral hearing. I proceed to consider the merits of the present application based on the materials available (see Re Abdus Salam [2019] HKCA 1091).

3.  The Applicant has made the Leave Application out of time. Pursuant to Order 53, rule 4 of the Rules of the High Court:

“(1) An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made.

(2) Where the relief sought is an order of certiorari in respect of any judgement, order, conviction or other proceeding, the date when grounds for the application first arose shall be taken to be the date of that judgement, order, conviction or proceeding.”

4.  For the reasons explained below, I do not consider that there is good reason to extend the period for the Leave Application to be made.

5.  In determining this matter, the relevant factors are as follows: (i) the length of the delay; (ii) the explanation for the delay; (iii) the merits of the substantive application; (iv) whether there is any prejudice; and (v) whether the application raises questions of general public importance (see AW v Director of Immigration [2016] 2 HKC 393 (CA) at §§23-36; Re Thomas Lai [2014] 6 HKC 1 at §§43‑45 (cited in AW, supra); H v Director of Immigration (2020) 23 HKCFAR 248 at §§17‑22, 36-44 (citing inter alia AW and Thomas Lai, supra); Re Hariatiningsih [2021] HKCFI 1194 at §§12-13, 16-19, upheld in [2022] HKCA 1321).

6.  First and foremost, the delay in question is substantial, and the Applicant has neither provided any explanation nor requested an extension.

7.  Most importantly, I am not satisfied that the Applicant’s intended application for judicial review of the Board’s Decision is reasonably arguable with any realistic prospect of success (see Peter Po Fun Chan v Winnie Cheung & Another (2007) 10 HKCFAR 676). The Adjudicator held that the Applicant’s case fell far short of demonstrating that there would be risk of death penalty, nor was there any evidence showing that he would be at risk of deprivation of his right to life, and therefore found no justification to set aside the Director’s Decision. Such ruling and decision are based on the following findings:

(1)  The Adjudicator was acutely aware of the Applicant’s claim that he believed he would be at risk of harm from Arshad and Shabbir, who were supporters of the political party Pakistani Peoples Party (PPP).

(2)  The Adjudicator found that the events in this case pointed to the Applicant having been bullied twice by Arshad and Shabbir, once in November/December 2007, and again at the end of 2008. The Applicant was told not to use the road next to Shabbir’s house, but ignored the warning and walked on. The two incidents occurred about a year apart, with no other events affecting the Applicant or his brothers. Neither Arshad nor Shabbir pursued the Applicant or escalated the matter further. The Applicant’s family, including his father, brothers, and sisters continued to live in their home village without incident, and Arshad or Shabbir had not taken any aggressive action toward them.

(3)  The Applicant believed that Arshad and Shabbir killed Nawaz in 2007. The Adjudicator noted that they were arrested by the authorities and were only released after the villagers refused to testify. There was no evidence showing that the police had failed to investigate or arrest them. Nor was there evidence showing that there was a lack of reasonable State protection in the Applicant’s village.

(4)  The Applicant’s concern was that his brother was being named a suspect for the killing of Tariq. However, there was no suggestion that the Applicant was implicated. In fact, he had no involvement in it; at that time, he was also staying in Hong Kong.

(5)  While staying in Lahore, the Applicant did not encounter Arshad, Shabbir, or any political figures causing him trouble. Even assuming Arshad and Shabbir had some influence, there was nothing to indicate they sway beyond the Applicant’s village.

(6)  The Applicant believed he would not receive State protection should Arshad or Shabbir chose to act oppressively toward him, due to perceived government corruption and officials allegedly favoring those who could pay bribes. However, while corruption and human right violations were noted in the country, their existence alone does not constitute sufficient ground to determine that a particular individual would be at risk. The key issue remained whether the Applicant would be personally at risk.

(7)  The Adjudicator noted, should the Applicant feel uncomfortable living in his native village, Lahore would certainly be a viable option for internal relocation.

8.  The Court’s role in a judicial review is not to provide a further avenue of appeal (see Re Zunariyah [2018] HKCA 14; Re Qadir Sher [2018] HKCA 160; Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Lakhwinder Singh [2018] HKCA 246 and Re Masoom Parvez [2018] HKCA 163). The Applicant has completely failed to identify any valid grounds for judicial review of the Board’s Decision (see Ho Loy & Another v Director of Environmental Protection, HCAL 21/2015 (22 December 2016) at §142). There is no complaint of errors of law, procedural unfairness, or irrationality, nor am I satisfied that any such issues exist, having reminded myself of the enhanced standard required by law to uphold a high level of fairness in decision-making (see Nupur Mst v Director of Immigration [2018] HKCA 524 at §14).

9.  In the premises, there is no reasonably arguable ground for judicial review with any realistic prospect of success in this case. Accordingly, there is no justification for the Court to intervene by judicial review.

10.  On the question of prejudice, there is none arising from my refusal to extend time for the Applicant to pursue a wholly unmeritorious judicial review claim. On the contrary, it is essential to adopt a disciplined approach in time extension applications in order to prevent unnecessary disruption to public administration and to avoid the inevitable delay that would result from permitting unmeritorious proceedings to proceed out of time.

11.  Lastly, in this matter, I also do not observe, nor do I accept, that any question of significant public importance has been raised by the Applicant.

Conclusion

12.  For these reasons, I refuse the Leave Application and make the orders set out above.

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