MOHAMMAD SANA ULLAH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 112/2025, [2025] HKCA 798

On An Intended Appeal From [2024] HKCFI 2588 &

[2025] HKCFI 628

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 112 OF 2025

(ON AN INTENDED APPEAL FROM HCAL NO 3816 OF 2019)

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J U D G M E N T

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Hon Chow JA (giving the Judgment of the Court):

1.  On 11 June 2025, the Applicant took out a summons to apply for leave to appeal out of time against the order of Deputy High Court Judge K W Lung (“the Judge”) dated 15 October 2024 (“the Order”) refusing to grant leave to apply for judicial review.

2.  The intended judicial review was against the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 11 December 2019, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 24 September 2018.

3.  Having considered the documents filed herein, we are of the view that it is appropriate to determine this application on paper without a hearing under Order 59, Rule 14A of the Rules of the High Court, Cap 4A.

BACKGROUND

4.  The Applicant is a national of Pakistan. He claimed that he sneaked into Hong Kong illegally on 1 February 2015[1]. On 11 March 2015, he surrendered himself to the Immigration Department and raised a non-refoulement claim on the basis that, if refouled, he would be harmed or killed by members of the Taliban because he failed to give them extortion money as demanded.

5.  By a Notice of Decision dated 24 September 2018 (“the Director’s Decision”), the Director rejected the Applicant’s non-refoulement claim with reference to all applicable risks: BOR 2 risk[2], BOR 3 risk[3], persecution risk[4], and risk of torture[5].

6.  The Applicant appealed the Director’s Decision to the Board. On 11 December 2019, the Board dismissed the Applicant’s appeal, and confirmed the Director’s Decision (“the Board’s Decision”). The Board found that the Applicant was not a witness of truth and his claims were fabricated (see §111 of the Board’s Decision). The Board found material inconsistencies and incoherence in the Applicant’s evidence in relation to the amount he promised to pay the Taliban, the length of time he was detained by the Taliban, the manner in which he negotiated his release from the detention, the response in the local community to his disappearance and subsequent release from the Taliban’s detention, and his encounter with the Taliban in the past (§§113-120). The Board considered that there was no real risk that he would face any of the proscribed forms of harm should he return to Pakistan (§128).

7.  On 23 December 2019, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision. No ground for seeking relief was given in the Form 86. In his supporting affirmation of the same date, the Applicant complained that the Director and the Board had disregarded the danger he would face from his enemy in his home country. He also complained that the Director and the Board erred in law in rejecting his claim. He asserted that state protection would not be available to him in his home country.

THE JUDGE’S DECISION

8.  The Applicant wrote a letter to the Court (received on 4 September 2024) requesting to withdraw his leave application on the ground that his problem in his home country had been resolved and it would be safe for him to return there.

9.  On 15 October 2024, the Judge, in view of the Applicant’s aforesaid request, dismissed his application for leave to apply for judicial review, noting that there was no evidence to show that the withdrawal application was made other than out of the Applicant’s free will, and there was no outstanding matter in the action ([2024] HKCFI 2588).

10.  On 21 January 2025, the Applicant applied by summons for an extension of time to appeal against the Order. By then, he was over two months late to lodge his appeal. On 6 March 2025, the Judge dismissed the Applicant’s application, holding that he had not given any valid reason to re-open his leave application, and the Court was entitled to dispose of his leave application without any determination on the merits ([2025] HKCFI 628).

THIS APPLICATION

11.  By a summons taken out on 11 June 2025, the Applicant applied to the Court of Appeal for leave to appeal out of time against the Order.

12.  In his written submissions lodged on 23 June 2025, the Applicant asserts, inter alia, that the Board’s Decision was unreasonable and irrational, and the Board failed to give sufficient reason for dismissing his appeal, erred in law, acted in a procedurally unfair manner in assessing his credibility and evaluating his evidence, failed to consider humanitarian grounds, and excluded significant aspects of the evidence on the ground that the evidence was hearsay or amounted to speculation. These are all general allegations without particulars. He also explains that the delay by the Immigration Department has disrupted his plan to return to Pakistan as his “opponent party” became angry with him and no longer agreed to “compromise with him”.

DISCUSSION

13.  In deciding whether to extend time to appeal, the court will take into account the length of the delay, the reasons for the delay, the chances of the appeal succeeding, and the degree of prejudice to the other party if an extension of time is granted.

14.  In the present case, the Applicant’s delay is substantial, and he has not given any explanation for his delay at all.

15.  The prospect of success of an intended appeal is important. The court will not grant an extension of time to appeal for a hopeless appeal to be pursued: Re Adumekwe Rowland Ejike [2019] HKCA 702, at §19.

16.  The Court of Appeal’s general approach in dealing with appeals in non-refoulement claims is set out in Nupur Mst v Director of Immigration [2018] HKCA 524, at §14. In particular, 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 was a fresh application for judicial review (see Nupur Mst, at §14(6)).

17.  Further, the assessment of evidence, country of origin information, 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 error of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022.

18.  The Applicant has failed to point to or show any error in the Judge’s decision of 15 October 2024. The matters raised in the Applicant’s written submissions are vague and general, and are all directed at the Board’s Decision. They do not give rise to any valid ground of appeal against the Judge’s decision. In any event, they are devoid of merit. In dismissing his appeal, the Board did not make, or rely on, any finding as to whether any part of the Applicant’s evidence was hearsay or speculative. The Board adopted a holistic approach in determining his appeal, and found that his claim was not credible or truthful because of material inconsistencies and incoherence in his evidence or his account of events. As earlier mentioned, assessment of the evidence is within the province of the Board. A high standard of fairness has been observed in the overall process of the Board’s determination of the Applicant’s appeal. No error of law or procedural unfairness or irrationality in the decision of the Board is shown in the present case.

19.  There is no prospect of success in the Applicant’s intended appeal. It is thus futile to grant the Applicant any extension of time to appeal against the Order.

DISPOSITION

20.  The Applicant’s summons taken out on 11 June 2025 is dismissed.