RE SHAHZAD MUHAMMAD

CACV 393 /2024, [2025] HKCA 320

On appeal from [2024] HKCFI 2240

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 393 OF 2024

(ON APPEAL FROM HCAL NO. 1703 OF 2020)

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J U D G M E N T

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

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge Lung (“the Judge”)  given on 12 September 2024[1] refusing to extend time for him to apply for judicial review and dismissing his application for leave to apply for judicial review against the decision dated 22 May 2020 of the Torture Claims Appeal Board (“the Board”)  dismissing his appeal against the decision dated 2 December 2016 of the Director of Immigration (“the Director”)  which rejected the applicant’s non-refoulement claim.

2.  By a letter received by this Court on 2 December 2024, the applicant requested to be granted bail.  As indicated in the Court’s reply on the same day, this was not a matter that could be dealt with by this Court and by way of letter.

3.  The appeal was scheduled to be heard on 25 March 2025.  On 27 February 2025, the Director informed the Court that the applicant has been removed from Hong Kong under a deportation order on 14 January 2025. Accordingly, the hearing date was vacated and we have proceeded to consider the appeal on paper.

The applicant’s claim

4.  The applicant is a national of Pakistan, aged 43. He entered Hong Kong illegally and was arrested by the police on 23 June 2009.  On 26 June 2009, he lodged a non-refoulement claim on the basis that, if refouled, he would be harmed or killed by the family of his friend Qamal, who accused him of murdering Qamal in 2009 because he brought Qamal to see his friend Qaisar, in the course of which Qamal was shot dead.  The applicant left Pakistan for Hong Kong to avoid being pursued by Qamal’s family.  The details of his claim were set out at [9] to [10] of the Director’s 1^st Decision.

The decisions of the Director and the Board

5.  By a Notice of Decision dated 19 May 2015, the Director rejected the applicant’s non-refoulement claim having regard to the torture risk[2], BOR 3 risk[3] and persecution risk[4] (“Director’s 1^st Decision).  The applicant appealed against the Director’s 1^st Decision to the Board, but he filed the notice of appeal/petition late. His late application was assessed and refused by the Board on 8 October 2015. 

6.  By a Further Notice of Decision dated 2 December 2016, the Director further assessed the applicant’s claim having regard to the BOR 2 risk[5] ground (“Director’s 2^nd Decision”).  The applicant appealed against the Director’s 2^nd Decision to the Board.  A hearing was scheduled for 18 December 2019 but the applicant was absent.  The Board wrote to the applicant to invite explanation for his absence.  The applicant did not respond.  The Board therefore proceeded to determine his appeal on paper.

7.  By a decision given on 22 May 2020, the Board dismissed his appeal.  In gist, the Board found the applicant’s account of threats was based on hearsay without any supporting evidence.  The alleged threats and demand for monetary compensation from Qamal’s family did not engage any issues of BOR 2 risks as the applicant was not a wanted criminal and he was not facing any impending punishment in his home country.  Even if the applicant would face criminal charges in Pakistan, he would have to go through the proper judicial procedure and there was no evidence to show that he would be deprived of a fair trial. The Board considered that the claim that Qamal’s family was seeking monetary compensation against the applicant indicated that they had no intention to kill him.  Further, the Board also accepted the Director’s assessment that state protection is available to the applicant in Pakistan.  The Board concluded that the applicant failed to provide any evidence indicating that he would face a genuine and substantial risk of being subjected to irreparable harm in Pakistan.

The Judge’s decision

8.  The applicant filed a Form 86 and a supporting affirmation on 24 August 2020 to seek leave to apply for judicial review against the decision of the Board dated 22 May 2020.  

9.  Order 53 rule 4(1)  of the Rules of the High Court Cap.4A requires an application for leave to apply for judicial review be made promptly and in any event within three months from the date when grounds for the application first arose.

10.  The applicant’s application was two days late.  The applicant did not provide any ground for seeking relief or explanation for his delay.  He only stated in his affirmation that he was not satisfied with the Director’s decision and that it was still dangerous for him to return to Pakistan.  

11.  The Judge heard the application at a hearing held on 31 July 2024.  By his judgment dated 12 September 2024, the Judge refused to extend the time for the applicant to apply for judicial review and dismissed his leave application.  Principally, the Judge considered that the intended judicial review enjoyed no realistic prospect of success in that the applicant could not satisfactorily explained his absence before the Board and the Board was justified to deal with his appeal on the papers, and the applicant has not raised any valid challenge to the Director’s decision which was adopted by the Board.  

The appeal

12.  By a Notice of Appeal filed on 24 September 2024, the applicant sought to appeal the Judge’s decision to this court.  In the Notice of Appeal, the applicant stated that the Judge’s decision was reached unfairly without giving him the opportunity to clarify his case.  In the grounds of appeal attached to the Notice of Appeal, the applicant quoted extensively the trite propositions from decisions on high standards of fairness and Wednesbury unreasonableness, and repeated his personal background, immigration history and the basis of his claim.  He also stated that he had previously failed to report to the Immigration Department because of his haemorrhoids condition.  

Our reasons for decision

13.  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 is a fresh application for judicial review: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

14.  Further, it is well established that the assessment of evidence, COI, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director as they are the primary decision makers.  The Court, in its supervisory role, will not intervene by way of judicial review unless there are errors of law, procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022.

15.  We are of the view that the matters raised in the Notice of Appeal and the grounds of appeal attached to it do not constitute viable grounds of appeal.  Firstly, they are general propositions of law without pointing to any particulars or specificity as to any errors in the Judge’s decision and his reasons.  Secondly, contrary to the applicant’s assertion that the decision was reached unfairly, he was in fact given the opportunity to clarify his case and the latest situation as regards his enemies and his family at a hearing before the Judge.  Thirdly, the Board had rejected his claim on the basis that it did not engage issues of BOR 2 risk.  In both the Form 86 and the supporting affirmation, the applicant has not identified any error in the Board’s assessment of the evidence and its findings, or any irrationality or procedural irregularity.  In the circumstances, the Judge’s decision to dismiss the application for leave to apply for judicial review cannot be faulted.  For the above reasons, the applicant’s appeal is devoid of merits.  Accordingly, we dismiss the appeal.

16.  On 27 February 2025, the Director informed the Court that the applicant has been removed from Hong Kong to his home country. We therefore direct that a copy of this judgment be served on the Director with a request that he uses his best endeavour to bring it to the notice of the applicant.