RE ABBAS NAZAR

CACV 183/2022

[2022] HKCA 824

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 183 OF 2022

(ON APPEAL FROM HCAL NO 2219 OF 2018)

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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):

1.  This is an appeal from the decision of DHCJ K W Lung (“Judge”)  dated 29 April 2022 refusing to grant the applicant leave to apply for judicial review.[1] The intended judicial review is directed at the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“Board”)  dated 14 May 2018 dismissing the applicant’s appeal against the decision of the Director of Immigration (“Director”)  to reject the applicant’s claim for non-refoulement protection in Hong Kong.

2.  The applicant is a Pakistani national.  He entered Hong Kong illegally on 17 August 2009 and made his non-refoulement claim on 20 August 2009.  His claim was based on his alleged fear that as a devoted Shia Muslim involved in many Shia organisations, he would be harmed or killed by extreme members of enemy sects if he returned to Pakistan. 

3.  The applicant’s claim was first assessed, and rejected, by the Director with reference to BOR 3 risk[2], persecution risk[3], torture risk[4], as set out in a Notice of Decision dated 8 July 2016.  It was subsequently assessed with reference to BOR 2 risk[5] but was also rejected by the Director, as set out in a Notice of Further Decision dated 28 June 2017.

4.  The applicant appealed against both decisions to the Board.  The Board heard the appeal on 11 April 2018.  The applicant attended the hearing, submitted the documents he relied on and answered the Board’s questions.  On 14 May 2018, the Board issued its 30-page decision dismissing the appeal.  The Board accepted the applicant was a Shia Muslim from Pakistan, but did not accept that he was a member of any of the claimed Shia organisations or that he was a devoted Shia believer.  Nor did the Board accept that the applicant was present at the violent incidents as alleged by him.  On this basis the Board found that the applicant would not face a real risk of harm upon his return to Pakistan.

5.  On 12 October 2018, beyond the 3-month time limit prescribed by Order 53 rule 4(1)  of the Rules of the High Court (Cap 4A), the applicant filed an application in the Court of First Instance for leave to apply for judicial review of the Board’s decision.  In his Form 86 and the accompanying affirmation, he stated there was still a risk that his life would be in danger in his native country and asked to be able to stay in Hong Kong until his problems were solved.  Apart from this, he did not specify any grounds for judicial review.

6.  Pursuant to Order 53 rule 3(3), the Judge dealt with the application on paper.  By his decision issued in the Form CALL-1 on 29 April 2022, the Judge rejected the application.  His reasons were stated as follows:

“ 18. As mentioned in paragraph 1, the applicant’s application is late. The Court has to consider the length of the delay, the reasons for the delay, the prospect of the intended application and the prejudice to the putative respondent if extension of time is granted. Also, the Court should not grant extension for a hopeless application. See AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 and Re Adumekwe Rowland Ejike [2019] HKCA 702, §19. I shall, therefore first consider the merit of the applicant’s case.

19. 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).

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

21. 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.’

22. For reasons given by the Board, the Board rejected the applicant’s factual evidence. The applicant has not raised any valid ground to challenge the Board’s Decision.

23. 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.

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

7.  From this decision the applicant now appeals to this court.  He has in writing consented for the appeal to be disposed of by the court on paper without an oral hearing.  In his Notice of appeal, he stated that he could show many errors in the proceedings before the Board, but he did not specify any.  In his written submissions lodged on 20 May 2022, the applicant stated there were threats to his life in his country which forced him to leave.  He stated that the Board did not give its decision based on law, that the Board became his opponent in asking him questions, that the Board did not give him time to submit documents, that the Board did not permit him to say certain points, and that his oral time was very short.

8.  By law, decisions on claims for non-refoulement protection are made by the Director, which may be appealed to the Board.  There is no further appeal on the merits to any other body.  The High Court exercises a general supervisory function, but it is axiomatic that this jurisdiction is limited to review of legality, and is not a further avenue of appeal on the merits.  The credibility of an applicant’s claim and his allegations is a question for the Board.  The court has no power to intervene unless the Board’s decision is impugned on public law grounds, such as where the Board has misdirected itself in law, or there is procedural unfairness in the process, or the Board’s decision is irrational or in other words so unreasonable that no reasonable decision-maker could have reached it.

9.  In the present case, it is evident from its decision that the Board meticulously assessed the applicant’s claims, having raised with him matters on which the Board had concerns.  The Board also received documents from the applicant, such as a membership card from Hussaini Razakaran and a reference letter from the Tehreek Nifaz-E-Fiqa Jafaraiya Pakistan, which the Board examined carefully but eventually did not accept to be authentic.  We can see no irregularity in the proceedings of the decision of the Board.

10.  The applicant has also failed to specify or demonstrate any error in the Judge’s decision.

11.  The complaints about the Board in the applicant’s written submissions to this court were not raised in the court below and for this reason should not be entertained.  In any event, the contentions that the Board did not allow him to submit documents or to say certain things are simply bald assertions, without any particulars, and totally unsubstantiated.  The allegation that the Board became his opponent in putting questions to him is misconceived, for it is incumbent upon the Board to test the applicant’s evidence and raise with him specific concerns the Board had with his case.  There is nothing to suggest that the Board did not allow sufficient time for the hearing before it.

12.  For these reasons, we consider that the Judge was correct in refusing leave to apply for judicial review, and that the appeal should be dismissed.