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

CAMP 111/2024, [2025] HKCA 258

On Appeal From [2024] HKCFI 480

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 111 OF 2024

(ON AN INTENDED APPEAL FROM HCAL NO 1641 OF 2021)

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

Introduction

1.  This is an application for extension of time to appeal against the decision of Deputy High Court Judge K. W. Lung (“Judge”) dated 29 February 2024[1], which dismissed the applicant’s application for leave to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”) dated 10 September 2021. In that decision, the Board dismissed the applicant’s appeal against the decision of the Director of Immigration (“Director”) dated 27 March 2019 rejecting his non-refoulement claim.

Background

2.  The applicant is a Pakistani born in 1994 and is the second of the five applicants in the Judge’s decision referred to in paragraph 1 above[2]. On 2 March 2018, he arrived in Hong Kong to attend Asia’s Fashion Jewellery and Accessories Show, Hong Kong International Jewellery Show and to source fashion jewellery products and meet suppliers for business cooperation. The applicant had overstayed since 13 March 2018 and he surrendered to the Immigration Department on 28 March 2018, claiming that his passport was lost. He first revealed that he wanted to lodge his non-refoulement claim on 9 April 2018. His claim was made on the basis that if refouled, he would be harmed or killed by some members of Pakistan Muslim League (Nawaz) (“PML(N)”) and his relatives due to a political dispute and a family dispute respectively.

3.  The applicant’s claim was assessed by the Director with reference to all relevant risks, namely, BOR 3 risk,[3] persecution risk,[4] torture risk[5] and BOR 2 risk.[6] By a notice of decision dated 27 March 2019, the Director rejected his claim.

4.  The applicant appealed to the Board against the Director’s decision. On 21 October 2020, he attended an oral hearing before the Board. At the hearing, the applicant’s mother, who was the first applicant before the Board, testified on behalf of the family. The applicant himself did not elect to add his testimony. On 10 September 2021, the Board issued its decision dismissing the appeal and affirming the decision of the Director. The Board’s reasoning can be seen from the following paragraphs in its decision, which were quoted by the Judge at [20] of the Form CALL-1:

“ 40. In the hearing, AP1 indicated that she will give evidence on behalf of the family, the other APs would not give evidence on their claims….

53. …… since AP1 refused to relate more information or answer questions about Shoukat, I found her credibility was in doubt. Her evidence was not accepted by me. …

60. Having considered all the evidence of AP1, I am not satisfied that AP1 had established that the unknown people and Shoukat were acting in the official capacity as required in the definition of “torture”.

69. I had found that the APs had never sustained a level of severe pain and suffering. From the evidence of AP1 as a whole, I find there were barely oral threats inflicting on the APs. There unknown people had no intention to kill or to inflict seriously bodily harm to the APs….

70. Having considered the evidence of AP1, I find that the Aps has [sic] failed to establish there are substantial grounds for believing that they would be in danger of being subjected to torture if they returned to India [sic]. Having considered the evidence as a whole I find there is no real chance for the APs being subjected to torture if they return to India, even if there is, State protection is reasonable [sic] available to the APs.”

The Judge’s decisions in the court below

5.  On 2 December 2021, the applicant, together with four others who were his mother and siblings, filed a Form 86 to seek leave from the Court of First Instance to apply for judicial review of the Board’s Decision. The supporting affirmation made by the 1^st to 4^th applicants simply stated that they disagreed with the Board’s decision, without setting out any specific ground.

6.  An oral hearing was held before the Judge on 17 January 2024, during which it was confirmed that the applicant would be the only one out of the five applicants who wished to proceed with the judicial review. On 29 February 2024, the Judge issued his decision refusing to grant leave to apply for judicial review. The reasons were set out in [21], [24] to [28] of the Form CALL-1 as follows:

“ 21. Although there are topographical mistakes as to the country of origin, which should be Pakistan instead of India, these mistakes, in my view, do not affect the Board’s Decision as to render it to be arguable on such errors.

……

24. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

25. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the 2^nd applicant said he would not apply for withdrawal of his application at the moment. He said he may join his family at a later stage.

26. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

‘ 13. (1) … …Assessment of evidence and COI materials and 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 errors of law or procedural unfairness or irrationality in the decision of the Board.’

27. The 2^nd applicant has raised no valid ground to challenge the Board’s finding of the facts. The 2^nd applicant fails to show that he has any realistic prospect of success in his proposed judicial review. There is no reason that the Court should interfere with the Board’s finding of the facts.

28. The 2^nd applicant fails to show that he has any realistic prospect of success in his proposed judicial review.”

7.  On 8 April 2024, about 3 weeks beyond the 14-day time limit for appeal prescribed by Order 53 rule 3(4) of the Rules of the High Court (Cap 4A), the applicant filed a summons together with a supporting affirmation to apply for extension of time for filing a notice of appeal. In his affirmation, the applicant claimed that he did not receive the Judge’s decision dated 29 February 2024 on time.

8.  On 14 June 2024, the Judge issued his decision in writing. The Judge considered that the applicant was deemed to have received his decision dated 29 February 2024 as it was sent to his last known address without being returned undelivered. In any event, the applicant failed to show any realistic prospect of success in his intended appeal, so that his application for extension of time to appeal was refused.

The renewed application before this Court

9.  By summons filed on 25 June 2024, the applicant made an application for leave to “appeal out of time the Judge’s decision dated 29 February 2024” and “to advance a new sole ground of appeal”.

10.  In the applicant’s supporting affirmation, he reiterated that he did not receive the Judge’s decision dated 29 February 2024 at his residential address and asserted that the decision was unfair. He also stated that he was “unrepresented and hence unaware of the rules regarding the 14-day time limit”.

11.  In the applicant’s written submission lodged on 9 July 2024, he merely recited general legal principles related to high standards of fairness and Wednesbury unreasonableness. He also quoted section 37ZT of the Immigration Ordinance concerning late filing of a notice of appeal with the Board. Pursuant to Order 1A rule 4 and Order 59 rule 14A of the Rules of the High Court (Cap.4A), we find it appropriate to determine this application on the basis of the written materials without an oral hearing.

Discussion

12.  The applicant was late for about 3 weeks when he filed his initial summons on 8 April 2024. His claim in his supporting affirmation that he did not receive the Judge’s decision dated 29 February 2024 on time had already dealt with by the Judge in his decision dated 14 June 2024. Nonetheless, as this was not a very lengthy delay, we are prepared to focus on the merits of his intended appeal.

13.  In assessing the merits, we have regard to the principles set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]. In particular, it is important to bear in mind that the role of the court in judicial review is not to provide a further avenue of appeal. The court will not intervene by way of judicial review unless there is an error of law, procedural unfairness or irrationality in the decision of the Board. In the determination of an appeal against the refusal of leave by the Court of First Instance, the Court of Appeal will only examine the decision of the judge in light of the grounds of appeal advanced by the applicant. If no viable ground is put forward for reversing the judge, the appeal should be dismissed. It is not the role of the Court of Appeal to examine the decision of the Board afresh as if the appeal were a fresh application for judicial review.

14.  In the present case, we are satisfied that extension of time should be refused because of the lack of merits in the intended appeal. The Board rejected the applicant’s non-refoulement claim because it was not satisfied that persons acting in official capacities were involved in the matter and that the applicant had never sustained a level of severe pain or suffering. The Board therefore found the applicant faced no real risk of serious harm upon refoulement and that in any event, reasonable state protection would be available. The Board, as the primary decision-maker, was entitled to come to these conclusions for the reasons given in its decision.

15.  It has to be borne in mind that judicial review is not a further avenue of appeal. The court does not rehear the appeal to the Board on the merits and is concerned only with the legality of the Board’s decision. The court has no power to impugn the Board’s decision unless it is vitiated by some public law errors, such as misdirection in law, procedural unfairness, or irrationality in the decision. The applicant has failed to establish or even identify any such public law grounds.

16.  It is well established that a non-refoulement claimant does not have absolute right to free legal representation at all stages of the proceedings: see e.g. Re Zafar Muazam[7]. The applicant was legally represented in the completion of his non-refoulement claim form and during the vetting process of the Director, which contained the same factual claims relied upon by the applicant in the subsequent processes. We do not find the non-availability of legal representation in the processes before the Board or the court to amount to any procedural unfairness.

17.  The role of this court on appeal from the Court of First Instance is not to rehear or re-consider the application for leave to apply for judicial review, but to deal with an appeal or application for extension of time to appeal based on the grounds of appeal advanced. The applicant has failed to advance any grounds to show how the Judge is said to have erred in dismissing his application for leave to apply for judicial review.

18.  In conclusion, we share the Judge’s view that there is no merit in the application for leave to apply for judicial review, and for the same reason, we are satisfied that extension of time should be refused. The applicant’s summons dated 25 June 2024 is accordingly dismissed.