RAHEEL SHAHBAZ v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 93 /2024, [2025] HKCA 560

On appeal from [2023] HKCFI 3222

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 93 OF 2024

(ON AN INTENDED APPEAL FROM HCAL NO 1564 OF 2020)

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J U D G M E N T

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Hon Kwan VP (giving the Judgment of the Court):

1.  On 11 December 2023, Deputy High Court Judge To refused to grant extension of time for the applicant to apply for leave to seek judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning his non-refoulement claim^[1].

2.  On 27 February 2024, the applicant filed a summons to seek extension of time to appeal against that decision at the Court of First Instance.  The summons was dismissed by the judge on 17 May 2024^[2].

3.  On 27 May 2024, the applicant filed a renewed application for extension of time to appeal with the Court of Appeal.

4.  The applicant is a national of Pakistan.  He entered Hong Kong illegally on 20 February 2016.  He was arrested by the police on 24 February 2016 and lodged a non-refoulement claim on the same day. His claim was made on the basis that, if refouled, he would be harmed or killed by the family of his girlfriend.

The decisions of the Director and the Board

5.  By a Notice of Decision dated 12 December 2018, the Director of Immigration (“the Director”) rejected the applicant’s claim on all applicable grounds including torture risk^[3], BOR 2 risk^[4], BOR 3 risk^[5] and persecution risk^[6].  

6.  The applicant appealed against the Director’s decision to the Board.  He was absent from the hearing scheduled before the Board on 27 August 2019.  He did not give any response to the Board’s request for written explanation for his failure to attend the hearing.  Therefore, the Board decided to determine the appeal on paper.

7.  The Board considered the applicant’s evidence unreliable and incredible because of significant inconsistencies.  The Board was not persuaded that the applicant had been assaulted and threatened by his girlfriend’s family.  The Board also did not accept there is a real chance that he would be harmed by his girlfriend’s family.  It further found reasonable state protection and internal relocation alternatives would be available to the applicant in Pakistan, which help to lower or negate the perceived risk of ill-treatment upon his return to Pakistan.  Therefore, the Board concluded that the applicant is not entitled to non-refoulement protection in Hong Kong on the applicable grounds and rejected the appeal on 28 November 2019. 

The intended judicial review

8.  On 27 July 2020, the applicant filed a Form 86 and an affirmation in HCAL 1564/2020 to seek leave to bring judicial review against the Board’s decision.  He only stated in his supporting affirmation that he was not satisfied with the Board’s decision and he cannot go back to his country because his life is not safe there, without putting forward any specific grounds for his intended challenge against the Board’s decision.

The judge’s decision

9.  The applicant was absent from the hearing scheduled before DHCJ To on 20 November 2023.  The judge found no errors of law in the Board’s decision or any procedural unfairness at any stage of the non-refoulement proceedings.  The judge further found that the Board’s decision is not Wednesbury unreasonable or irrational.  He held that the Board’s decision is without fault and the applicant’s claims are not reasonably arguable.  He concluded there is no realistic prospect of success in the intended judicial review.  The judge therefore lifted the legal aid stay, refused to grant extension of time for the applicant to apply for leave to seek judicial review and dismissed the leave application on 11 December 2023.

Grounds of intended appeal

10.  The applicant stated the following grounds in his summons filed on 27 May 2024:

(1)  He does not agree with the decision of the court. He has severe problem in his home country and he will be killed by his enemies if he returns to his home country;

(2)  The decision maker did not consider his application to extend time.

11.  His contentions in his written submissions may be summarised as follows:

(1)  The judge was wrong as a matter of law for not applying the principle of irrationality to the decisions made by the Director and the Board;

(2)  High standards of fairness are required in the determination of a torture claim on the part of the decision maker but the judge reviewed the matter lightly;

(3)  The judge was wrong as a matter of law for not having applied the principle of procedural unfairness to the decision of the Director whereby the Director and the adjudicator were required to give reasons justifying their decisions;

(4)  The applicant’s problems are very severe in his home country and he has submitted all the proofs but the judge has not applied greater care and disappointed the applicant;

(5)  The judge did not analyse his case properly and the decision was unreasonable;

(6)  The adjudicator has failed to give sufficient chance for the applicant to arrange for relevant evidence to support his non-refoulement claims as well as his appeal;

(7)  The applicant will face hardship if he returns to his home country and the Board has significantly relied on source of news which is not officially recognised, or is simply hearsay;

(8)  The adjudicator was irrational in failing to evaluate and make finding as to whether there is a consistent pattern of gross and mass violation of human rights in Pakistan;

(9)  The adjudicator was irrational in failing to assess whether state protection existed in Pakistan and misdirected himself as to the extended meaning of state protection;

(10)  The applicant was tortured by his enemies who are now in power in Pakistan.

Analysis and disposition

12.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will take into account: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted.

13.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court, Cap 4A, the applicant may appeal to the Court of Appeal against the judge’s order refusing leave within 14 days after such refusal.  The order was made on 11 December 2023 and the applicant was late by 2 months when he took out the summons at the court below on 27 February 2024.  He explained that he did not receive any letter from the court informing him of the outcome of the decision.   

14.  The court had sent the judge’s decision on 11 December 2023 by post to the applicant’s address stated in his Form 86 as well as the updated address of the applicant provided by the Immigration Department to the court, which is the same address as stated by the applicant in his present summons.  The mails were not returned by the post office. 

15.  Furthermore, the judge had previously directed the applicant to file a statement stating the date and circumstances under which he received the order or information about the outcome of his application for leave to apply for judicial review but he failed to comply with the said directions.

16.  It is the duty of a litigant to give the court an address to which correspondence or notice can come to his attention in a timely manner.  The consequence of any delay or failure occasioned by the ineffectiveness of such an address would fall on the shoulder of the litigant (Re Hasmi Rizwan Imran [2018] HKCA 439, at §15).

17.  Under these circumstances, the applicant’s delay is inexcusable.  Therefore, he must show a real prospect of success on the merits to obtain an extension of time to appeal: Secretary for Justice v Hong Kong Yaumatei Ferry Co Ltd [2001] 1 HKC 125.

18.  The general principles regarding an appeal in a non‑refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

19.  The role of the court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  Though in non-refoulement cases the court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of issue at hand, the court should not usurp the role of the Board.  Assessment of evidence and Country of Origin Information 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.

20.  The applicant had not raised the grounds against the Board in his previous applications at the court below.  It is established that an appeal against the refusal of leave by a judge in the Court of First Instance is not an occasion for running arguments which could and should have been raised but not raised before the judge: Nupur Mst v Director of Immigration, supra, at §14(2).  

21.  In any event, the Board has set out in detail its analysis of the applicant’s evidence and the country of origin information of the applicant’s home country in its decision.  In particular, the Board found there is no reliable evidence to show a real chance that the applicant would be harmed by his girlfriend’s family.  The applicant failed to adduce any reliable evidence to refute the Board’s findings and failed to show any errors of law or procedural unfairness or irrationality in the decision of the Board.

22.  In addition, the applicant’s grounds and submissions against the judge are just bare assertions without any particulars or evidence in support.  He failed to demonstrate that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

23.  For the above reasons, there is no prospect of success in the intended appeal.  Therefore, we refuse to exercise our discretion to grant extension of time to appeal against the judge’s decision of 11 December 2023 and dismiss the summons filed on 27 May 2024.

[1]  [2023] HKCFI 3222

[2]  [2024] HKCFI 1321

[3]  This refers to the risk of torture under Part VIIC of the Immigration Ordinance (Cap 115).

[4]  This refers to the risk of being arbitrarily deprived of life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).

[5]  This refers to risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).

[6]  This refers to the risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.