MUHAMMAD JAMIL v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 206 /2024, [2026] HKCA 93

On appeal from [2024] HKCFI 1647

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 206 OF 2024

(ON AN INTENDED APPEAL FROM HCAL NO 1559 OF 2020)

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J U D G M E N T

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Hon Kwan VP (giving the Judgment of the Court):

Background

1.  On 4 July 2024, Deputy High Court Judge K W Lung refused to grant leave for the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning his non-refoulement claim^[1].

2.  On 22 July 2024, the applicant filed a summons to seek extension of time to appeal against that decision at the Court of First Instance.  The summons was dismissed by the judge on 24 September 2024^[2].

3.  On 28 October 2024, the applicant filed the present summons with the Court of Appeal to seek leave to appeal out of time against the order dated 24 September 2024.  This summons should be treated as a renewed application for extension of time to appeal against the judge's decision of 4 July 2024 (Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at §§3 to 8).

4.  The applicant is a national of Pakistan.  He entered Hong Kong illegally on 4 June 2011.  He was arrested by the police on 4 July 2011.  He lodged a torture claim on 6 July 2011 which was refused on 13 January 2014.  He lodged a non-refoulement claim on 24 February 2014 on the basis that, if refouled, he would be harmed or killed by Malik Muhammad Altaf who is a member of Pakistan Muslim League (Nawaz) and his men because the applicant supported the rival political party, the Pakistan People’s Party. 

The decisions of the Director and the Board

5.  By a Notice of Decision dated 15 October 2018, the Director of Immigration (“the Director”) rejected the applicant’s claim on all applicable grounds including BOR 2 risk^[3], BOR 3 risk^[4] and persecution risk^[5], other than torture risk^[6] as his torture claim has already been refused.  

6.  The applicant appealed against the Director’s decision to the Board.  He attended the hearing before the Board on 15 October 2019.  The Board did not accept the applicant’s evidence because of the vagueness, implausibility, evasiveness and multiple material inconsistencies in his evidence, as well as his unconvincing explanations.  The Board considered that the applicant has fabricated his claims to create a basis for his application for non-refoulement protection.  The Board concluded that the applicant would not face a real risk of proscribed harm under any of the applicable ground if he is refouled to his home country.  Therefore, the Board rejected the appeal and confirmed the Director’s decision on 14 July 2020.

The intended judicial review

7.  On 24 July 2020, the applicant filed a Form 86 and an affirmation in HCAL 1559/2020 to seek leave to bring judicial review against the Board’s decision.  He did not put forward any specific grounds for his intended challenge.

The judge’s decision

8.  On 31 December 2021, the court granted leave to the applicant to withdraw his leave application upon his application.  The applicant later applied to re-open his case, indicating that the problem in his country has not yet been solved.  The court granted leave for him to re-open his application and directed that the application should be dealt with on paper.

9.  The judge found that the applicant has raised no valid reason to challenge the Board’s findings and there is no reason for the court to interfere with the Board’s decision.  As the applicant failed to show any realistic prospect of success in the intended judicial review, the judge dismissed the leave application on 4 July 2024.

Grounds of Appeal

10.  The applicant stated the following grounds in his written submissions:

(1)     He was deprived of the right to make full grounds for appeal as the determination has not been translated to him and he had to submit everything in English because the court would not accept grounds written in his own language, otherwise he would have done that;

(2)     The judge erred in determining that he had not failed to appreciate the significance of the applicant’s non‑refoulement claim;

(3)     The lack of assistance provided to him is an error of law or procedure, or evidence of procedural unfairness, or failure to adhere to a high standard of fairness.  Non-refoulement claims are life and limb cases and should be assessed with caution, taking into account his vulnerability and disadvantage;

(4)     The authorities should take into account the real procedural unfairness throughout the case and put aside public policies of trying to dispose of non-refoulement claims as quickly as possible;

(5)     The applicant was never provided with proper legal and language assistance.  The determination of the appeal/petition has never been read to him in his own language and it is unfair;

(6)     The discriminatory act of authorities towards non-refoulement claimants on the basis of quick disposal is unacceptable and is detrimental to the spirit of the judicial system; and

(7)     The decisions of the Director and the Board are unreasonable or irrational in the public law sense or are a result of procedural errors or unfairness.

Analysis

11.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will take into account: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted.

12.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court, Cap 4A, the applicant may appeal to the Court of Appeal against the judge’s order refusing leave within 14 days after such refusal.  The order was made on 4 July 2024 and the applicant was late by 3 days when he took out the summons at the court below on 22 July 2024.  The applicant did not provide any explanation for the delay when he applied for extension of time at the court below.

13.  He filed the present application more than one month after the lower court refused to grant extension of time.  He explained that he cannot speak English and does not know the court procedure.  Ignorance of court procedure is not a justifiable explanation for delay.  The applicant managed to prepare his previous leave application in English.  This shows that either the applicant is himself conversant with the English language or he has access to language assistance of his own if needed.  Under these circumstances, the delay is inexcusable.  Thus, the applicant must show a real prospect of success on the merits to obtain an extension of time to appeal: Secretary for Justice v Hong Kong & Yaumati Ferry Co Ltd [2001] 1 HKC 125.

14.  The general principles regarding an appeal in a non‑refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

15.  In the present case, interpreter services were provided at hearings at every stage and at the time when the applicant was assisted by Duty Lawyer.  The high standard of fairness required by law would not entail interpretation service being made available to an applicant all the time as he may desire: Re Gurung Sagar [2019] HKCA 658. 

16.  As for the lack of legal assistance, the Court of Appeal has repeatedly stated that an applicant of non-refoulement claim does not have an absolute right to free legal representation at all stages of the proceedings^[7]. The applicant already had the benefit of legal representation in presenting his case to the Director.

17.  The rest of the applicant’s grounds are just bare assertions which are not supported by evidence or particulars.  The applicant failed to show that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.  Therefore, there is no prospect of success in the intended appeal.

18.  For the above reasons, we refuse to grant extension of time to appeal against the judge’s decision of 4 July 2024 and dismiss the summons filed on 28 October 2024.

[1] [2024] HKCFI 1647

[2] [2024] HKCFI 2478

[3] This refers to the risk of being arbitrarily deprived of life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[4] This refers to risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance.

[5] This refers to the risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.

[6] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.

[7] Re Paswan Shibu Lal[2018] HKCA 249 at §21