RE AKHTAR MOHAMMAD TASNIM

CACV 502/2024, [2025] HKCA 306

On appeal from [2024] HKCFI 3239

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 502 OF 2024

(ON APPEAL FROM HCAL NO. 1940 OF 2019)

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J U D G M E N T

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Hon Barnes J (giving the Judgment of the Court):

1.  This is an appeal against the decision of Deputy High Court Judge To (“the Judge”)  given on 20 November 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 24 May 2017 of the Torture Claims Appeal Board (“the Board”)  dismissing the applicant’s appeal against the decisions dated 13 July 2016 and 24 March 2017 of the Director of Immigration (“the Director”)  which rejected the applicant’s non-refoulement claim.

2.  The applicant’s appeal was scheduled to be heard on 25 March 2025.  The applicant was directed to lodge his written skeleton argument not less than 28 days before the hearing and further warned that if he failed to do so, he shall be deemed to have waived the right to have an oral hearing and the hearing date would be vacated with his appeal being determined on paper.  This was communicated to the applicant by the Court’s letter dated 7 February 2025 and the Notice of Hearing dated 10 February 2025. 

3.  Despite the directions, the applicant has failed to lodge a skeleton argument by the stipulated time. The hearing date was accordingly vacated, and we have proceeded to process this appeal on paper based on the available materials.  

The applicant’s claim

4.  The applicant is a national of Pakistan, aged 53. He first arrived in Hong Kong on 14 February 1995 and was later permitted to stay as a dependent of his father who was Pakistan’s Consulate-General in Hong Kong at the time. His status later changed to becoming a dependent of a Hong Kong female resident whom he married in May 1998. However, the Immigration Department subsequently discovered that the applicant was previously married to a Filipino woman in September 1996 in the Philippines and the marriage was valid and subsisting at the time of his marriage in 1998. Accordingly, the Immigration Department upon its assessment declared in April 2011 the applicant’s permanent identity card invalidated.  His appeal against the decision was dismissed in November 2012. The applicant thereafter applied for refugee status with the United Nations High Commissioner for Refugees (“UNHCR”).  On 24 January 2014, he lodged a non-refoulement claim.

5.  The applicant’s non-refoulement claim was on the basis that, if refouled, he would be harmed or killed by his distant relatives over some land disputes in Pakistan. The details of his claim were set out at [2] and [3] of the Board’s decision.  In gist, the applicant claimed that his distant relatives have illegally occupied the farmland of his father after he passed away in 2012, and had assaulted and injured his younger brothers during a confrontation in 2013.  Initially, the matter was resolved with apologies from his relatives after his family reported the incidents to the police. However, the relatives subsequently lured the applicant’s younger brothers into drugs so that they became addicted and under the control of the relatives. The applicant fears that if he returns to Pakistan, his relatives will force him and his brothers to transfer the land to them.  The applicant claims that internal relocation is not viable as he has settled in Hong Kong for more than 20 years, working as a driver, and his children have all grown up in Hong Kong.   

The Director’s and the Board’s decision

6.  By a decision dated 13 July 2016, the Director rejected the applicant’s claim on torture risk[2], BOR 3 risk[3] and persecution risk[4] grounds.  By a further decision dated 24 March 2017, the Director further decided against the claim based on the BOR 2 risk[5] ground. 

7.  The applicant appealed to the Board.  A hearing took place on 10 May 2017 during which the applicant testified and answered questions from the Board.  By a decision given on 24 May 2017, the Board dismissed his appeal.

8.  In gist, the Board found on the applicant’s account that he has never suffered from any harm or injury from his relatives.  His claimed fear of harm could not satisfy the requirements for non-refoulement protection under any of the applicable grounds[6].  The Board, after considering a range of country of origin information (COI), concluded there was no evidence to show that the applicant would face a substantial risk or fear if he were to return to Pakistan; state protection would be available to him and internal relocation was viable given his work experience and the difficulty of being located by his relatives within Pakistan[7].  The Board further held that the fact that the applicant has settled in Hong Kong for over 20 years and that his children grew up here do not afford legal basis to qualify him for non-refoulement protection[8]. For these reasons, the Board concluded that the applicant failed to establish a case for non-refoulement protection under any of the applicable grounds.

The Judge’s decision

9.  By a Form 86 dated 10 July 2019, the applicant applied for leave to judicially review the Board’s decision.  Order 53 rule 4(1)  of the Rules of the High Court Cap.4A provides that an application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose.  As the Board’s decision was dated 24 May 2017, the applicant’s Form 86 was late by about 22.5 months.  The applicant did not provide any ground for seeking relief or explanation for his delay.  He only stated in his supporting affirmation that his life would be in danger if he returned to Pakistan as his problem has not been resolved yet.

10.  The Judge held an oral hearing on 7 November 2024. By a Form CALL-1 dated 20 November 2024, the Judge refused to extend the time for the applicant to apply for judicial review and dismissed his leave application. He gave his reasons at [7], [13] to [15] as follows:  

“7. The Applicant did not give any explanation for the delay in his Form 86 or supporting affirmation. At the hearing, the Court explored the explanation with him. The only explanation he gave was that he did not know the procedure. That is hardly a possible explanation or excuse for a person in his circumstances. He first came to Hong Kong in 1995 and married in 1996. He has been living in Hong Kong for about 26 years since 1998 when he came with the intention to take up permanent residence. Three months is more than enough time for him to find out the available legal remedy and procedures. The delay in this case is so substantial that leave may be refused on this ground alone. Accordingly, extension of time to file the leave application is refused and his application for the leave to apply for judicial review is refused. For completeness, the merits of his leave application are briefly discussed below.”

Legal principles applicable to judicial review

13.  The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration.

Grounds for judicial review

14.  The Applicant did not advance any grounds for review in Form 86.  In his supporting affirmation, he reiterated that his life would be in danger if he returned to his home country, and he liked to stay in Hong Kong until the problems in Pakistan were resolved.  At the hearing, after the legal principles in the preceding paragraph was explained to him, he confirmed he had no complaint about error of law, procedural unfairness or irrationality in the Decision and left it to the Court to look for these vitiating elements in the Decision for him. He repeated his danger in Pakistan and his desire to stay in Hong Kong until his problems in Pakistan were resolved.  In the absence of specific grounds of application or grounds with sufficient particulars, the Court could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision. 

Overall scrutiny

15.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, this Court is satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness. The Board assessed the Applicant’s claim on the basis of his case as he asserted but found on such evidence that his fears of K and B are mere speculations; that adequate state protection is available and internal relocation is feasible.  It was on that basis that the Board found the Applicant had failed to establish the factual basis to support his claim for non-refoulement protection under any of the applicable grounds under the USM. This is a mixed finding of fact and of the law. Insofar as it is a finding of fact, it is exclusively within the realm of the Board, which the Court on a judicial review will not interfere save when such finding was made as result of error of law, procedural unfairness or that the Decision is irrational. Insofar as the Board’s finding is a finding of the law, it is absolutely correct. The Court could detect no error of law or procedural unfairness in the making of the Decision. The Decision does satisfy the enhanced Wednesbury test.  The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success.”

This appeal

11.  On 26 November 2024, the applicant filed a Notice of Appeal to appeal the Judge’s decision.  He stated in his Notice of Appeal that he disagreed with the decisions of the Director and the Board and that his case has not been fairly determined.  

Discussion

12.  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].

13.  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.

14.  In light of the established legal principles set out above, we are of the view that the arguments put forward by the applicant have no merits. Our reasons are as follows:

(1)  The applicant was almost 23 months late when he filed his Form 86.  This is serious delay.  The burden is on the applicant to show that there are good reasons for the delay, rather than a good excuse: AW v Director of Immigration and Anor CACV 63 of 2015, 3 November 2015 at [27].  His explanation that he did not know the procedure was not accepted by the Judge for reasons already explained at [7] of his decision. In the circumstances, the Judge was entitled to refuse to extend the time for the applicant to apply for judicial review.

(2)  Furthermore, it is well-established that the decision by the Board supersedes the decision of the Director and represents the final decision on the claim at the end of its processing. See Re Moshsin Ali [2018] HKCA 549 at [45].  It is therefore not open to the applicant to challenge the Director’s decision by way of judicial review.  Hence, insofar as the applicant seeks to appeal against the decision of the Director in his Notice of Appeal, he is bound to fail. 

(3)  The Court will only interfere with the Board’s assessment of risk and its decision if it can be demonstrated that the decision is erroneous in law or irrational or there is procedural irregularity or unfairness. In his Form 86 and supporting affirmation, the applicant had not set out any ground for seeking relief or made any challenge to the reasons and findings of the Board. Further, the Judge, having scrutinised the Board’s decision at [15] of his decision, concluded that there was no proper basis to disturb it. The applicant has also failed to identify any error in the Judge’s decision or to identify with particulars how his case has been unfairly determined. In the circumstances, the Judge’s conclusion that the intended judicial review has no reasonable prospect of success cannot be faulted.   

(4)  We have separately considered the Board’s decision. Likewise, we do not discern any legal errors, irrationality or procedural irregularities. We agree with the Judge that there is no proper basis for disturbing the Board’s finding and conclusion for the reasons given in its decision, and the intended judicial review has no reasonable prospect of success.

Order

15.  For the above reasons, this appeal is dismissed.