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

CAMP 1 /2024, [2024] HKCA 1115

On appeal from [2023] HKCFI 2474

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 1 OF 2024

(ON AN INTENDED APPEAL FROM HCAL NO 952 OF 2019)

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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):

1.  On 5 October 2023, Deputy High Court Judge K W Lung refused to grant leave for the applicant to seek judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning his non-refoulement claim^[1].

2.  On 24 October 2023, the applicant filed a summons in the Court of First Instance to seek extension of time to appeal against that decision.  The summons was dismissed by the judge on 14 December 2023^[2].

3.  On 2 January 2024, the applicant filed a renewed application for extension of time to appeal with the Court of Appeal.

4.  The applicant is a national of Pakistan.  He entered Hong Kong illegally on 8 November 2008 and was arrested by the police on 13 November 2008.  He raised a torture claim on 16 November 2008, which was rejected on 13 November 2013.  He lodged a claim for non‑refoulement protection on the ground of Torture or Cruel, Inhuman or Degrading Treatment or Punishment on 15 November 2013 and submitted a Supplementary Claim Form on 24 April 2018. His claim was assessed on all applicable grounds other than torture risk^[3]. His claim is based on his fear that he will be harmed or killed by his cousin who is associated with Pakistan Muslim League Qaaf and Pakistan Muslim League Nawaz because of a land dispute.

The decisions of the Director and the Board

5.  By a Notice of Decision dated 5 June 2018, the Director of Immigration (“the Director”) rejected the applicant’s claim on BOR 2 risk^[4], BOR 3 risk^[5] and persecution risk^[6].  

6.  The applicant appealed against the Director’s decision to the Board.  The appeal was heard before the Board on 28 January 2019.  The Board considered that the significant inconsistencies in the applicant’s evidence in the key aspects and his failure to provide a satisfactory explanation for the inconsistencies indicate that he was not telling the truth about his reasons for leaving Pakistan and not wanting to return.  Therefore, the Board did not accept that the applicant is at risk of any kind of harm from his cousin.  Besides, the Board was not satisfied that any of the alleged harm falls within the five Convention reasons.  The Board concluded that the applicant is not entitled to non-refoulement protection in Hong Kong on any of the applicable grounds under the Unified Screening Mechanism and dismissed the appeal on 25 March 2019.

The intended judicial review

7.  On 9 April 2019, the applicant filed a Form 86 and an affirmation in HCAL 952/2019 to seek leave to bring judicial review against the decisions of the Director and the Board.  His grounds may be summarised as follows:

(1)  The decision was unreasonable and unfair;

(2)  The Board failed to give him sufficient time and chance to arrange for relevant evidence;

(3)  The Director failed to give proper weight to the presence of state acquiescence.  He was tortured at the behest of state law enforcement agencies as well as those in the “high up” of political circles.  The Director failed to take the above arguments into account and failed to consider the evidence which shows that the police in his country would not be able to protect him;

(4)  This was a clear case of unfair attitude shown by the Director.  The corruption and incompetency of the administration in the applicant’s country is still a very serious problem.  The Director failed to attain the high standard of fairness required.

The judge’s decision

8.  By the order of DHCJ K W Lung, the Form 86 was amended such that the Board is the proposed respondent and the Director is the interested party.  The applicant was absent at the hearing scheduled on 30 January 2023.  Thus, the judge decided to deal with the application on paper.  The judge held that grounds (1) and (4) are just bare assertions without evidence or specific details in support.  The judge found that applicant did not make any complaint concerning ground (2) when he appeared before the Board.  The judge further found that the applicant did not tell the Immigration Officer about the evidence he mentioned under ground (3) in the screening stage in stating that the alleged problem between him and his cousin is a land dispute without the involvement of the state.  It was noted that the Board dismissed the appeal because of the significant discrepancies in the applicant’s claim.  The judge considered there is is no error or law or procedural unfairness in the Board’s decision.  Therefore, the judge dismissed the leave application on 5 October 2023.

Grounds of intended appeal

9.  The applicant did not put forward specific grounds of appeal in the present application.  He only stated in his affirmation in support that the High Court “did not do good” by rejecting his application to extend time and it is his legal right to appeal.

Analysis and disposition

10.  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.

11.  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 5 October 2023 and the applicant was late by 5 days when he took out the summons at the court below on 24 October 2023.  He explained that he did not get the High Court judgment. 

12.  Even if the court is minded to accept his explanation in light of the short delay, the court would still assess whether the applicant can show a reasonable prospect of success in the intended judicial review, which is the crucial consideration here^[7].

13.  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.

14.  In the present application, the applicant failed to put forward any reasonably arguable grounds against the judge’s decision to demonstrate 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.

15.  Thus, there is no prospect of success in the intended appeal.  We refuse to grant extension of time to appeal against the judge’s decision of 5 October 2023 and dismiss the summons filed on 2 January 2024.