ABBAS RAEES v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 207/2024, [2025] HKCA 171

On An Intended Appeal From [2024] HKCFI 1676 &

[2024] HKCFI 2740

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 207 OF 2024

(ON AN INTENDED APPEAL FROM HCAL NO 1716 OF 2019)

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JUDGMENT

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Hon Chow JA (giving the Judgment of the Court):

1.  On 28 October 2024, the Applicant took out a summons to apply for leave to appeal out of time against the order of Deputy High Court Judge K W Lung (“the Judge”) dated 9 July 2024 (“the Order”) refusing to grant the Applicant leave to apply for judicial review.

2.  The intended judicial review was against the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 14 June 2019, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 29 January 2018 rejecting the Applicant’s non-refoulement claim.

3.  Having considered the documents, we are of the view that it is appropriate to determine this application on paper without a hearing under Order 59, Rule 14A of the Rules of the High Court, Cap 4A.

BACKGROUND

4.  The Applicant is a national of Pakistan.  He claimed to have entered Hong Kong illegally on 5 April 2016.  He surrendered himself to the Immigration Department on the same day.  On 24 October 2016, he lodged a non-refoulement claim on the basis that, if refouled, he would be harmed or killed by Rafaqat Butt (“Butt”) and his subordinates, who were members of the Pakistan Muslim League (Nawaz), due to some family disputes between the Butt family and the Applicant’s family.  Details of the Applicant’s claim have been summarised by the Judge at §§4-9 of the CALL-1 Form ([2024] HKCFI 1676). 

5.  By a Notice of Decision dated 29 January 2018, the Director rejected the Applicant’s non-refoulement claim on all applicable grounds: BOR 2 risk[1], BOR 3 risk[2], persecution risk[3] and risk of torture[4] (“the Director’s Decision”).

6.  The Applicant appealed the Director’s Decision to the Board.  He failed to attend the Board’s hearing scheduled on 6 May 2019. The Board proceeded to consider the Applicant’s appeal in his absence.  On 14 June 2019, the Board dismissed the Applicant’s appeal, and confirmed the Director’s Decision (“the Board’s Decision”).  The Board’s reasons for its decision have been summarised by the Judge at §13-15 of the CALL-1 Form, as follows:

“[13] The Board observed that the applicant’s claims were lacking in detail in significant respects and that he did not provide detailed information regarding (i) the dispute between his family and the Butt’s family; (ii) the false accusation of murder against his father and the subsequent conviction; (iii) the assault on him and his father in 2013; (iv) his relocation with his family in late 2013 to avoid the members of the Butt’s family; (v) circumstances of the assault by Mr Butt in late 2015 when he returned to his hometown and (vi) why he did not consider internal relocation a viable option [24] - [27].

[14] Given the absence of the applicant, the Board had insufficient evidence to be satisfied that the events raised by the applicant were factual and had no confidence in accepting his claims. It rejected his claims that he was at risk due to a long-running dispute between his family and the Butt’s family and that he left Pakistan due to his feared harm from Mr Butt [28] - [30].

[15] Based on such findings, the Board concluded that the applicant’s case failed to meet any of the requirements under Torture risk, BOR 2 and BOR 3 risk or Persecution risk [32] - [53]. The Board therefore dismissed the applicant’s appeal and confirmed the Director’s Decision.”

7.  On 21 June 2019, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision.  No ground of judicial review was given in the Form 86.  In his affirmation filed in support of his application, he merely stated that he did not agree with the Board’s Decision and repeated his fear of being refouled back to his home country. 

THE JUDGE’S DECISION

8.  On 9 July 2024, the Judge refused to grant the Applicant leave to apply for judicial review, for the following reasons:

“[18] The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal. The Court will not usurp the fact-finding power vested in the Director and the Board…

[19] The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

…

[21] Under section 15 of Schedule 1A of the [Immigration Ordinance], if the applicant was absent at the hearing, the Board, after giving due notice to the applicant for explanation, might proceed to hear the appeal in the absence of the applicant.

[22] The Board did so and considered the facts of the applicant’s case. For the reasons given above, the Board rejected his evidence, which the Board was entitled to do under those circumstances.

[23] There is no valid reason from the applicant to challenge the Board’s Decision. Nor is there any explanation from the applicant for his absence before the Board.

[24]  The applicant therefore fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.”

9.  On 27 September 2024, the Applicant applied by summons for an extension of time to appeal against the Order.  By then, he was over two months late to lodge his appeal.  On 24 October 2024, the Judge refused the application, holding that the Applicant had failed to raise any valid reason to challenge the Board’s Decision and there was no realistic prospect of success in his intended appeal ([2024] HKCFI 2740).

THIS APPLICATION

10.  By a summons taken out on 28 October 2024, the Applicant applied to the Court of Appeal for an extension of time to appeal against the Order.  In the said summons, the Applicant said that “he did not receive the sealed order, CALL-1 and Judgement within 14 days from 9 July 2024” which had been “lost in post”.  The same was repeated in his affirmation filed on the same date. 

11.  In his written submissions lodged on 11 November 2024, the Applicant made some generic submissions on general principles of law relating to non-refoulement claims, but failed to explain how those principles were relevant or applicable to his case.

DISCUSSION

12.  In deciding whether to extend time to appeal, the court will take into account the length of the delay, the reasons for the delay, the chances of the appeal succeeding, and the degree of prejudice to the other party if an extension of time is granted.

13.  In the present case, the length of the Applicant’s delay is substantial.  As pointed out by the Judge in his decision of 24 October 2024, the CALL-1 Form and the Order were sent to the Applicant’s last reported address on 9 July 2024 without being returned through undelivered post.  The Applicant has given no good or valid explanation for his delay.

14.  The prospect of success of an intended appeal is important.  The court will not grant an extension of time to appeal for a hopeless appeal to be pursued: Re Adumekwe Rowland Ejike [2019] HKCA 702, at §19.

15.  The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524, at §14.  In particular, in an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant. If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed.  The Court of Appeal’s role is not to examine the Board’s decision afresh as if it was a fresh application for judicial review (see Nupur Mst,at §14(6)).

16.  Further, the assessment of evidence, country of origin information, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director. The court will not intervene by way of judicial review unless there are error of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022.  No such error of law or procedural unfairness or irrationality in the decision of the Board is shown in the present case.

17.  The matters raised in the Applicant’s written submissions are all general allegations without particulars.  The Applicant has failed to point to or show any error in the Judge’s decision of 9 July 2024, and has failed to raise any viable ground of appeal against the Order.

18.  There is no prospect of success in the Applicant’s intended appeal.  It is thus futile to grant the Applicant any extension of time to appeal against the Order.

DISPOSITION

19.  The application for extension of time to appeal is refused, and the Applicant’s summons taken out on 28 October 2024 is dismissed.