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

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

Following;

1.  Form 86 be amended, naming only the Torture Claims Appeal Board/Non-refoulement Claims Petition Office as the putative Respondent and the Director of Immigration as the Putative Interested Party.

2.  The Applicant’s application for extension of time to file the application for leave to apply for judicial review be refused.

3.  The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

Introduction

1.  By a Form 86 dated 18 May 2021 (the “Form 86”), the Applicant applied for leave to apply for judicial review against the decision by the Torture Claims Appeal Board (the “TCAB”) dated 5 June 2020 (the “TCAB Decision”), which affirmed the decision of the Director of Immigration (the “DOI”) dated 20 September 2018.

2.  I amend the Form 86 on my own motion to name only the TCB as the putative respondent and the DOI as the putative interested party.

3.  In the Form 86, the Applicant also sought leave for judicial review against the DOI Decision. But the DOI Decision is superseded by the TCAB Decision (Re Moshin Ali [2018] HKCA 549 at [45]). For present purposes, the relevant decision is the TCAB Decision.

4.  The Applicant requested for a hearing of this application. When asked whether he had anything to add, he said that he got married and had applied for visa for 2 years. He also said “everyone knows the condition in Pakistan”.

Background

5.  The Applicant is a Pakistan national.  In gist, he fears that due to, inter alia, his past involvement in the PTI, he would be harmed or killed by 4 members of the PML(N). The Applicant’s personal background, the relevant facts and relevant procedural history have been sufficiently set out in the TCAB Decision, which can be viewed through a hyperlink[1]. I shall therefore not repeat them.  Unless otherwise specified, TCAB’s abbreviations and descriptions are adopted herein.

Legal Principles

6.  The leave application operates as a filtering process and there is no requirement or expectation to give elaborate reasons for my decision: Re Zunariyah [2018] HKCA 14 at [23].  It is sufficient to state my observations after considering the TCAB Decision and the materials adduced by the Applicant.

7.  I remind myself that in a judicial review, this court does not provide a further avenue of appeal.  While I also remind myself that in non-refoulement cases, I would adopt an enhanced standard in scrutinizing the decision of the TCAB given the seriousness of the issue at hand, this court would not usurp the role of the TCAB, which together with the DOI are the primary decision-makers. A finding of fact is exclusively within the realm of the TCAB, and this court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the TCAB: Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(1)].  There must be a reasonably arguable case with a realistic prospect of success before leave for judicial review will be granted: Peter Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676. 

8.  In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly: Ho Loy v Director of Environmental Protection (unreported, HCAL 21/2015, 22 December 2016) at [142], and further to make full and frank disclosure of all material facts to be verified by an affidavit.

9.  Given RHC O 53 r 4(1) and s 21K(6) High Court Ordinance (CAP 4A), where an Applicant applies for leave to apply for judicial review more than 3 months after the decision:

a.   The failure to apply within 3 months constitutes “undue delay”.  To justify an extension of time in which to apply for leave, the Applicant must show “good reason” to extend time.  In deciding this, certain factors that are likely to be significant are (i) the length of the delay (ii) the explanation for the delay[2] (iii) the merits of the substantive application[3] (iv) prejudice, and (v) whether the application raises questions of general public importance;

b.   Where the court considers that there is no good reason for extending the period, it will refuse leave to apply for judicial review.  The refusal of an extension of time is part and parcel of a refusal to grant leave to apply. It is not the case that the court refuses the extension of time as a discrete decision and then makes no decision on the question of leave to apply for judicial review, treating this as a separate matter entirely;

c.   If the court is satisfied that there is good reason for extending the period, it does not follow that leave to apply for judicial review will automatically be given.  While the court might grant leave, it retains a discretion to refuse to do so and the existence of a good reason for undue delay is only one facet of the question, others including sufficiency of interest and the need to satisfy the arguability test.  Leave may also be refused on the basis that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration; and

d.   Even if leave to apply is granted, the issue of undue delay on the part of the applicant may be raised again at the substantive hearing of the judicial review application.  That is a separate consideration of whether relief should be refused on the basis that the court thinks that relief would be likely to cause substantial hardship or prejudice to the rights of another or be detrimental to good administration.

See Thing Sunil v TCAB [2025] HKCFI 4366, at [9], citing AW v Director of Immigration & anor. [2016] 2 HKC 393 (CA) at [23 to 36], Thomas Lai [2014] 6 HKC 1 at [43 to 45] as also cited in AW, supra), and H v Director of Immigration (2020) 23 HKCFAR 248 at [17-22, 36-44] citing inter alia both AW and Thomas Lai. See also Re Hariatiningsih [2021] HKCFI 1194 at §§12-13, 16-19 citing the aforesaid, upheld in [2022] HKCA 1321.

Discussion

10.  The Application was out of time for around 8 months.

11.  Having considered the matters below, applying the well-known principles stated above, I decline the request to extend time.

12.  First, I note that the Applicant has not explained the delay on paper. When asked about this in Court, in gist, he claimed that he had been in remand 3 years in Lai Chi Kok since 2018 until 2021. He claimed that his mental condition was not stable at the time. I am skeptical about this belated explanation. It is to be noted that he gave a similar explanation before the TCAB when applying for an adjournment which was duly rejected by the TCAB [6]. It is inconceivable that he did not learn from his mistakes below, and still provided no proof of his mental issue, which was specifically raised by the TCAB [6i]. 

13.  Secondly, I am not satisfied that the Applicant’s intended application for judicial review of the Board’s Decision is reasonably arguable with any realistic prospects of success (see Peter Po Fun Chan v Winnie Cheung & Another (2007) 10 HKCFAR 676), and I would have dismissed the present application even if it had been brought within time.

14.  The Applicant’s affirmation attaches a document titled, “Grounds on which Relief is sought”, which contains 4 grounds. But they are vague and largely generic grounds which in truth do not point to any error of law, procedural unfairness or irrationality of the TCAB Decision in the Form 86.

15.  As can be seen from the TCAB Decision, the TCAB took into account all the evidence available and found that on the basis of the same, applying the correct legal principles in respect of all applicable grounds under the Unified Screening Mechanism, the Applicant’s allegations were insufficient to make out any of the applicable grounds [48-73]. It is clear that the Applicant’s case was bound to fail, as there was no evidence whatsoever that the members of the PML(N) were acting in the official capacity, or acting under the state authority or in the ostensible exercise of the public authority. There was no evidence showing that they were imbued with State authority [32]. It was not even alleged that the local police were informed of the alleged threat, and there was no basis whatsoever to assert that the Applicant would not receive state protection [33-37].

16.  There is no substance in the complaint that he was not given sufficient time to produce document cf. ground 1: see [6ii] of the TCAB Decision which has dealt with this complaint (and in my view, correctly) in detail. All the other grounds are not relevant in view of the TCAB’s conclusion above. In any event, as stated above, the grounds are vague and in truth did not point to any errors of TCAB. Indeed, it is baffling that ground 2 asserts that “[t]he applicant was tortured at the Behest and the state law enforcement agencies as well as those in the high ups of political circles”, and the grounds appear to be generic and recycled from grounds presented by other applicants.

17.  I have also carefully considered his oral submissions. The Applicant’s visa application and family circumstances in Hong Kong are not valid grounds or relevant consideration in relation to his own non-refoulement claim: Oguzie Ikechukwu Charles v Torture Claims Appeal Board, unreported, CACV 469/2021, 21 January 2022, [2022] HKCA 135, at [20] and Re Adeel Muhammad, unreported, CACV 71/2022, 7 August 2023, [2023] HKCA 948 at [7].  The conditions in Pakistan had been fully considered by the TCAB.

18.  All in all, I do not see any errors of law, procedural unfairness or irrationality in the TCAB Decision, despite rigorous examination and anxious scrutiny.  I would have dismissed the application in any event.

19.  Third, an extension of time for an unmeritorious application such as the present one, coupled with the gross delay, would result in further undue delay, prove prejudicial, and undermine the orderly conduct and progress of the refoulement process. 

20.  In light of the foregoing, no extension of time is granted and the application is 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