ASIF MAHMOOD v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 277/2023, [2024] HKCA 363

On Appeal From [2021] HKCFI 2773

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 277 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO 816 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 20 September 2021[1] refusing to grant leave for the applicant to apply for judicial review.  The intended judicial review is against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”)  dated 2 March 2021.  In that decision, the Board refused the applicant’s late filing of the notice of appeal/petition against the decision of the Director of Immigration (“Director”)  dated 12 October 2018 rejecting his non-refoulement claim.

2.  On 13 April 2022, the Judge refused to extend time for the applicant to appeal against his decision of 20 September 2021.

Background

3.  The applicant is a national of Pakistan born in 1975.  He had entered Hong Kong as a visitor on 29 March 2003 and was permitted to stay until 12 April 2003.  On 12 April 2003, his application for extension of stay as a visitor was refused; he overstayed and was subsequently arrested in November 2013.  On 1 April 2014, the applicant raised his intention to lodge a non-refoulement claim on the basis that he would be harmed or killed by his father-in-law and his brother-in-law due to their belief that he had murdered or kidnapped his wife and his son, if he was refouled to Pakistan.

4.  The applicant’s claim was assessed by the Director with reference to all relevant risks, namely, BOR 3 risk,[2] persecution risk,[3] torture risk,[4] and BOR 2 risk.[5]  By a notice of decision dated 12 October 2018, the Director rejected the claim.

5.  The applicant appealed to the Board against the Director’s decision out of time by way of notice of appeal/petition dated 12 December 2020, which was received on 22 December 2020.  In its decision dated 2 March 2021, the Board refused the late filing of the notice of appeal/petition.  The Board’s reasoning was summarised by the Judge at [8] and [9] of the Form CALL-1:

“ 8.  The applicant appealed against the Director’s Decision.  The Board received his notice of appeal on 22 December 2020 and found that the appeal was made more than 2 years late [29] The Board found that his explanation for his delay was sketchy.  It seems that the applicant was telling the Board that he was being detained [21].  In any event, the Board seemed to be not satisfied with his explanation.  It went on to consider the underlying merits of the applicant’s case.  At paragraph 61 of the Board’s Decision, it held:

‘ There is nothing before me to show that the Appellant has a very strong case to appeal against the NOD (Notice of the Director’s Decision)  … I see no patent error in the NOD…..’

9.  Obviously, the Board had considered the Director’s Decision before making such findings.  Based upon its findings, it refused to extend time for the applicant to file his notice of appeal, in effect, dismissing his appeal.”

The Judge’s decisions in the court below

6.  On 2 June 2021, the applicant filed a Form 86 to seek leave from the Court of First Instance to apply for judicial review of the Board’s Decision, without specifying any grounds in that form.  In the supporting affirmation, the applicant stated:

“ I don’t agree with the Decision of Torture Claim Appeal Board I want to file JR judicial review against them I don’t want to go back to my country because my life is still in danger over there.”

7.  The Judge considered the application on the basis of the documents alone as the applicant did not request an oral hearing.  On 20 September 2021, the Judge issued his decision to refuse to grant leave to apply for judicial review.  The reasons were set out in [12] to [19] of the Form CALL-1 as follows:

“ 12. 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, CA. §40 and Nupur Mst v Director of Immigration [2018] HKCA 524 §14 (1).

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

14. 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.’

15. The Court of Appeal in Re Khan Kamal Ahmed [2019] HKCA 377, 2 April 2019:

‘ 16. Section 37ZT(3)  of the Ordinance gives the Board the discretion to allow the late filing of a notice of appeal if it is satisfied that by reason of special circumstances, it would be unjust not to do so.

17. Where a notice of appeal to is filed out of time, s 37ZT(2)  mandates the Board to decide as a preliminary decision without a hearing whether it allows the late filing of the notice of appeal, and in doing so, to take account of “any other relevant matters of fact within the knowledge of the Board” apart from the explanation for the delay.

……

20. … it was incumbent upon the Board, in exercise of its discretion to extend time for appeal, to take the merits of the applicant’s case into account regardless of the procedural breaches or the lack of explanation therefor.’

16. The Board has considered the Director’s Decision on the merits of the applicant’s case.

17. His grounds in support of this application do not assist his application.

18. The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

19.  There is no evidence that shows that the applicant has any realistic prospect of success in his intended judicial review.”

8.  The applicant filed a summons on 21 February 2022 together with a supporting affirmation to apply for extension of time for filing the notice of appeal.  He stated that he was transferred from the Castle Peak Bay Immigration Centre to the Tai Tam Gap Correctional Institute on 27 June 2021.  He also stated that the decision of the Judge dated 20 September 2021 was received by him on 17 January 2022.  In his affirmation, the applicant stated that he had lodged the summons dated 15 February 2022 within the stipulated time.  On 13 April 2022, the Judge issued his decision in writing refusing to extend time for appeal on the ground that the applicant had failed to show any realistic prospect of success in his intended appeal.

The renewed application before this Court

9.  After a long delay, by summons filed on 9 August 2023, the applicant made an application for leave to extend time because his life was still in danger if he returned to his home country.  He also stated that he was not satisfied with the decisions of the Director and the Board and they were unfair.  His grounds of the proposed appeal were that the Judge was wrong as a matter of law for not finding the Director’s decision to be irrational and that he was not satisfied with all the decisions made in his case.  We shall treat this as a renewed application for an extension of time to appeal against the decision of the Judge dated 20 September 2021 refusing leave for judicial review.

10.  In the applicant’s supporting affirmation, he stated that he was not satisfied with the decisions of the Director and the Board and that they were unfair.  He also stated that he could not go back to his country as his life was in danger there.  The applicant annexed a 10-page document entitled “Grounds” to his affirmation.  This document mainly consisted of reciting general legal principles concerning fairness, Wednesbury unreasonableness, the law on late filing of petition to the Board and the Hong Kong Bills of Rights, without explaining their application to his case.  He further repeated his claim for non-refoulement protection and he submitted that the Director had failed to take into account or give sufficient weight to the aforementioned legal principles and that the Judge was wrong in law for not finding the decision of the Director to be irrational.  He also annexed the sealed order of the Judge dated 13 April 2022 and a copy of the Judge’s corresponding decision of the same date.

11.  The applicant did not lodge any written submissions in accordance with the directions of the Registrar of Civil Appeals dated 9 August 2023.  Pursuant to Order 1B rule 4 and Order 59 rule 14A of the Rules of the High Court, we find it appropriate to determine this application on the basis of the written materials without an oral hearing.

Discussion

12.  In the decision dated 13 April 2022, the Judge stated that the applicant was late for 4 months and 17 days when he filed his initial summons on 21 February 2022.  In the applicant’s summons, he said that he did not receive the decision of 20 September 2021 until he received it under the court’s cover letter dated 17 January 2022 as annexed to his summons. According to the court file, it appears that the applicant had not informed the court of any change of address prior to the handing down of the decision of 20 September 2021 and that the court had in fact re-sent the decision of 20 September 2021 to the applicant’s detention centre on 17 January 2022. Even on the applicant’s own case, his summons was still late. We have nonetheless proceeded to consider 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 the Board had properly refused the late filing of the applicant’s notice of appeal/ petition in accordance with section 37ZT of the Immigration Ordinance, Cap. 115 (“Ordinance”).  The Board considered that the applicant’s reason for delay was sketchy, that he would have been made aware of the time limit for filing the appeal even prior to filing his non-refoulement claim form, that he did not have a very strong case for appealing against the decision of the Director, that there was no fault on the part of the Director, that there was no question of public importance in his case and that there were no special circumstances that would make it unjust to disallow the late filing of the appeal.  Under the Ordinance, the Board 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 is not concerned with the merits of the question whether the applicant should be allowed to file a late appeal to the Board, but 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 error, such as misdirection in law, procedural unfairness, or irrationality in the decision.  As the Board’s decision was issued prior to the amendment to section 37ZT(2)(b)  of the Ordinance in 2021, the reasoning in Re Qasim Ali [2019] HKCA 430 applied, in which the Board should take into account of the merits of the appeal as well.  In the present case, the Board had considered the underlying merits of the applicant’s intended appeal at [61] of its decision, as noted by the Judge in the Form CALL-1.  The applicant has failed to establish or even identify any public law grounds for impugning the Board’s decision.

16.  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. 

17.  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 9 August 2023 is accordingly dismissed.