AHMAD AQEEL v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 107/2025, [2025] HKCA 797

On Appeal From [2025] HKCFI 746

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 107 OF 2025

(ON APPEAL FROM HCAL NO 2080 OF 2019)

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J U D G M E N T

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Hon Andrew Chan J (giving the Judgment of the Court):

1.  This is the Applicant’s appeal against the order of Deputy High Court Judge Reuden Lai (“the Judge”)  dated 21 February 2025 (“the Order”)  refusing to grant leave to the Applicant to apply for judicial review of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”)  dated 8 March 2019, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”)  dated 10 January 2017.

BACKGROUND

2.  The Applicant is a national of Pakistan.  He claimed that he sneaked into Hong Kong illegally on 27 June 2012.  He was arrested by the police on the same date.  On 30 June 2012, he lodged a non-refoulement claim on the basis that, if refouled, he would be harmed or killed by his four paternal uncles (“Uncles”)  over a land dispute between his family and his Uncles who were important and influential people and also long serving members of the Pakistan Muslim  League (N).  Details of the Applicant’s claim have been summarised by the Judge at §§2-9 of the CALL-1 Form.

3.  By a Notice of Decision dated 30 July 2014 (“the 2014 Director’s Decision”), the Director dismissed the Applicant’s non-refoulement claim with reference to the following risks: risk of torture[1], BOR 3 risk[2], and persecution risk[3].

4.  On 12 August 2014[4], the Applicant appealed the 2014 Director’s Decision to the Board.  On 29 June 2015, the Board dismissed the Applicant’s appeal and confirmed the 2014 Director’s Decision (“the 2015 Board’s Decision”).  The Board’s reasons for its 2015 Decision were summarised by the Judge at §§30-34 of the CALL-1 Form, as follows:

“[30] In the 2015 Board Decision, the Board found that there were a number of discrepancies between the Applicant’s evidence in his earlier statements and the evidence given at the oral hearing before the Board. The Board set out its analysis of the Applicant’s evidence leading to the aforesaid finding in §§63-69 of the 2015 Board Decision.

[31] The Applicant was never assaulted, tortured or punished. The Applicant’s alleged ill-treatment could not be described as ‘severe’ punishment or ‘torture’ as defined in section 37U of the Ordinance. The Board further found that the Applicant failed to show that he was at risk of being ‘severely harmed or subjected to the BOR 3 risk should he be refouled back to Pakistan.

[32] The Board was of the view that being threatened by Uncles over a land dispute did not come under any of the reasons specified in Article 33 of the Refugees Convention calling for non-refoulement protection.

[33] The Board further found that state protection would be available to the Applicant upon his return. It observed that the Applicant was able to avail himself of state protection when he was staying with his in-laws. It also found that internal relocation to Rawalpindi or Lahore would be viable to the Applicant.

[34]  For the reasons stated in the 2015 Board Decision, the Board dismissed the 2014 Appeal and affirmed the 2014 [Director’s] Decision.”

5.  The Director, by a letter dated 15 December 2016, invited the Applicant to submit additional facts which might be relevant to his non-refoulement claim on all applicable grounds, including BOR 2 risk[5].  In the absence of any response from the Applicant, the Director by a Notice of Further Decision dated 10 January 2017 (“the 2017 Director’s Decision”), rejected the Applicant’s claim with reference to BOR 2 risk.

6.  The Applicant appealed the 2017 Director’s Decision to the Board.  On 21 January 2019, the Applicant attended a hearing before the Board and gave oral evidence.  On 8 March 2019, the Board dismissed the Applicant’s appeal, and confirmed the 2017 Director’s Decision (“the 2019 Board’s Decision”).  The Board’s reasons for its 2019 Decision were summarised by the Judge at §§36 and 37 of the CALL-1 Form, as follows:

“[36] The Board found that the Applicant’s oral evidence was inconsistent with his evidence supplied in the [Non-Refoulement Claim] and that the Applicant’s claims were implausible. The Board set out its analysis of the Applicant’s evidence leading to the aforesaid finding in §§30-33 of the 2019 Board Decision.

[37]  The Board further found that the rest of the Applicant’s family was able to live peacefully with his in-laws away from Uncles and that he would be able to live peacefully with them upon his return.  It further found that state protection would be available to him upon his return.”

THE JUDGE’S DECISION

7.  On 22 July 2019, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the 2019 Board’s Decision.  By then, he was 6 weeks late in filing his leave application to apply for judicial review.  No ground for seeking relief was given in the Form 86.  In his supporting affirmation of the same date, the Applicant merely stated that he did not agree with the decisions of the Board and the Director, and he could not go back to his home country because his life would be in danger there.

8.  On 21 February 2025, the Judge gave his decision refusing to extend time for the Applicant to apply for leave to apply for judicial review of the Board’s Decision and dismissed the leave application.

9.  The Judge considered that the Applicant’s delay of six weeks in making the leave application was substantial, and an extension of time was required for him to apply for leave to apply for judicial review. In the absence of any explanation for the Applicant’s delay, the Judge held that there was no basis to extend time, and the leave application was liable to be dismissed on the ground of delay.

10.  In any event, the Judge proceeded to consider the merits of the Applicant’s intended judicial review and refused to grant leave to apply for judicial review on the merits, for the following reasons:

“[45] No proper ground for his intended challenge was stated in the Form 86 and/or the Supporting Affirmation. The Applicant did not attend the Court Hearing nor provide any particulars or specifics in the Form 86 and/or the Supporting Affirmation as to how the Board had erred in the 2019 Board Decision in affirming the 2017 DOI Decision, or in what way was the 2019 Board Decision unfair or unreasonable or that the Board had acted procedurally unfair or irrational, or how did the Board take into account irrelevant matters or fail to take into account relevant matters.

[46] Having rigorously examined the 2019 Board Decision and the 2017 [Director’s] Decision with anxious scrutiny, I am satisfied that the Board had correctly set out the law and key legal principles relating to the BOR 2 Claim; the burden of proof and standard of proof; correctly identified the issues and observed high standards of fairness.

[47] The Board did not accept that the Applicant faced any risk of being seriously harmed or killed by Uncles upon his return. Effective state protection would be available to him and internal relocation viable.

[48] It was on such basis that the Board found that the Applicant had failed to prove his entitlement to non-refoulement protection. These are findings of fact which are exclusively within the province of the Board, which the court in a judicial review will not interfere save when such findings involved error of law, procedural unfairness or irrationality. In this case, the court does not detect any error of law in the 2019 Board Decision or procedural unfairness at any stage of the non-refoulement proceedings. The 2019 Board Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. The proposed judicial review is not reasonably arguable.

Conclusion

[49]  The From 86 was filed out of time without leave from the court and having considered the 2019 Board Decision and the 2017 [Director’s] Decision with rigorous examination and anxious scrutiny, as I do not find any error of law or procedural unfairness or any failure to apply high standards of fairness in the consideration and assessment of the BOR 2 Claim, and as I am not satisfied that the Applicant’s intended judicial review is reasonably arguable with realistic prospects of success, I accordingly dismiss this application for leave to apply for judicial review.”

THIS APPEAL

11.  In his Notice of Appeal filed on 6 March 2025, the Applicant merely states that he would like to “reject and review” the decision made by the court as it has disregarded his dangerous situation.

12.  The Applicant has failed to lodge written submissions in support of his appeal in accordance with the directions given by the Registrar of Civil Appeals on 24 June 2025.  Accordingly, he is deemed to have waived the right to have an oral hearing of his appeal and elected to have his appeal disposed of on paper.  Having considered the documents before us, we consider that it is appropriate to deal with the Applicant’s appeal on paper without an oral hearing. 

DISCUSSION

13.  Under Order 53, Rule 4 of the Rules of High Court, Cap 4A, 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 unless the Court considers that there is good reason for extending the period within which the application shall be made.  We agree with the Judge that the delay of 6 weeks is substantial in the present case.

14.  As for the merits of the appeal, the Court of Appeal’s general approach in dealing with appeals in non-refoulement cases 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 a non-refoulement case, 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 or Director’s decision afresh as if it was a fresh application for judicial review (see Nupur Mst,at §14(6)).

15.  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 errors of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022.  No such error of law or procedural unfairness or irrationality in the decisions of the Board is shown in the present case.

16.  The Applicant has failed to identify or show any error in the Judge’s decision refusing to grant leave to apply for judicial review, or raise any viable ground of appeal against the Order.  The Judge adopted the correct approach in considering whether to grant an extension of time for the Applicant to apply for leave to apply for judicial review.  We are satisfied that the Judge was right to refuse to grant an extension of time to the Applicant for making the leave application, and to dismiss the leave application because of (i)  the Applicant’s substantial delay coupled with the absence of any reasonable explanation for the delay, and (ii)  the lack of merits of his intended judicial review. 

17.  The Applicant’s appeal has no merit, and is dismissed.