DOST IMRAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 87/2024, [2025] HKCA 151

On Appeal From [2022] HKCFI 2144

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 87 OF 2024

(ON AN INTENDED APPEAL FROM HCAL NO 676 OF 2019)

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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):

Introduction

1.  This is an application for extension of time to appeal against the decision of Deputy High Court Judge K. W. Lung (“Judge”) dated 15 July 2022 ,[1] which refused to grant the applicant an extension of time for applying for leave for judicial review and dismissed his application for leave to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”) dated 27 July 2018.  In that decision, the Board dismissed the applicant’s appeal against the decision of the Director of Immigration (“Director”) dated 9 November 2017 rejecting his non-refoulement claim.

Background

2.  The applicant, aged 34, is a Pakistani.  He entered Hong Kong illegally on 22 October 2014 and was arrested by the police on 31 October 2014. He lodged a non-refoulement claim on 2 November 2014.  His claim was made on the basis that, if refouled, he would be harmed or killed by his parental uncle Yaqoob Hussain (“YH”) and YH’s sons due to a land dispute.

3.  The applicant’s claim was assessed by the Director with reference to all relevant risks, namely, BOR 3 risk,[2] BOR 2 risk,[3] persecution risk[4] and torture risk.[5]  By a notice of decision dated 9 November 2017, the Director rejected the claim.

4.  The applicant appealed to the Board against the Director’s decision.  The Board held an oral hearing of the appeal on 4 July 2018, at which the applicant gave evidence and answered questions from the Board.  In its decision dated 27 July 2018, the Board dismissed the appeal and affirmed the decision of the Director.  The Board found that the applicant lacked credibility due to the inconsistencies and contradictions in his evidence. His new claim in the Notice of Appeal/Petition that he would be killed by his family for marrying his wife without their approval was also rejected because he failed to raise it previously despite ample opportunities to do so. In any event, the Board found that the alleged injuries were not inflicted by persons acting in official capacities, while state protection and internal relocation would also be available to the applicant.

The Judge’s decisions in the court below

5.  Over 4 months beyond the 3-month time limit for judicial review prescribed by Order 53 rule 4(1) of the Rules of the High Court (Cap 4A), on 11 March 2019, the applicant filed a Form 86 to seek leave from the Court of First Instance to apply for judicial review of the Board’s Decision.  In his supporting affirmation, he stated that his life is still in danger in Pakistan and he could not leave his pregnant wife as well as his kid herer.

6.  The Judge considered the application on the basis of the documents alone as the applicant did not request an oral hearing.  On 15 July 2022, the Judge issued his decision to refuse to extend time for applying for leave for judicial review and dismissed his application for leave to apply for judicial review.  The reasons were set out in [14] to [20] of the Form CALL-1 as follows:

“ 14. 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.

15. 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, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

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

17. 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.’

18. Those grounds raised by the applicant are not valid grounds to challenge the Board’s Decision. On the question whether the applicant is entitled to rely upon humanitarian or compassionate ground for his pregnant wife here, it is not clear whether his wife is a permanent resident of Hong Kong. However, even if his wife is a permanent resident of Hong Kong, the Court of Final Appeal in Comilang, Milagros Tecson & others v Director of Immigration [2019] HKCFA 10 held:

‘ 90. … The Director is not duty bound to take into account the various rights relied upon when exercising his discretion to refuse permission to stay to the appellant mothers since such rights are disengaged by section 11. …’

19. 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.

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

7.  More than 15 months after the expiry of the 14-day time limit for appeal prescribed by Order 53 rule 3(4) of the Rules of the High Court (Cap 4A), the applicant filed a summons on 3 November 2023 together with a supporting affirmation to apply for extension of time for filing a notice of appeal. In his affirmation, he stated that:

“ The decision made by the High Court Judge K.W. Lung has been reached unfairly without allowing me an opportunity to clarify my case and situation in my country. Moreover, it’s not sufficient that was a litigant in person & unrepresented. I did not receive any correspondence from the Court regarding my Judicial Review be refused as I’m serving sentence. …”

8.  On 5 February 2024, the Judge dismissed the applicant’s application for extension of time to appeal on the ground that there was no reasonable prospect of success in the intended appeal.

The renewed application before this Court

9.  By summons filed on 17 May 2024, the applicant made an application to this Court for leave to appeal the Order of the Judge dated 5 February 2024 out of time.  We shall treat this as a renewed application for extension of time to appeal against Judge’s decision dated 15 July 2022, which refused to extend time and dismissed the applicant’s application for leave to apply for judicial review. 

10.  In the applicant’s supporting affirmation, he recited general legal principles related to high standards of fairness and Wednesbury unreasonableness, and asserted there was procedural impropriety by the Board and a failure by the Judge to apply the “principle of irrationality”. The applicant also denied the availability of state protection and stated that the Board had placed excessive reliance on country of origin information that was unfavourable to him.

11.  The applicant did not lodge any written submissions in accordance with the directions of the Registrar of Civil Appeals dated 17 May 2024.  Pursuant to Order 1A rule 4 and Order 59 rule 14A of the Rules of the High Court (Cap.4A), we find it appropriate to determine this application on the basis of the written materials without an oral hearing.

Discussion

12.  As noted above, the applicant was late for more than a year when he filed his initial summons on 3 November 2023. Given such substantial and unexplained delay, the present application is liable to be dismissed on that basis alone. We would nonetheless proceed to consider the merits of his intended appeal.

13.  In assessing the merits, we have regard to the principles set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]. In particular, it is important to bear in mind that the role of the court in judicial review is not to provide a further avenue of appeal. The court will not intervene by way of judicial review unless there is an error of law, procedural unfairness or irrationality in the decision of the Board. In the determination of an appeal against the refusal of leave by the Court of First Instance, the Court of Appeal will only examine the decision of the judge in light of the grounds of appeal advanced by the applicant. If no viable ground is put forward for reversing the judge, the appeal should be dismissed. It is not the role of the Court of Appeal to examine the decision of the Board afresh as if the appeal were a fresh application for judicial review.

14.  In the present case, we are satisfied that extension of time should be refused because of the lack of merits in the intended appeal.  The Board had heard the applicant and assessed his evidence providing detailed reasons.  The Board rejected the applicant’s non-refoulement claim because it found the applicant not credible and that his alleged injuries were not inflicted by persons acting in official capacities. The Board also considered that both state protection and internal relocation would be available to the applicant. The Board, as the primary decision-maker, was entitled to come to these conclusions for the reasons given in its decision.

15.  It has to be borne in mind that judicial review is not a further avenue of appeal.  The court does not rehear the appeal to the Board on the merits and is concerned only with the legality of the Board’s decision.  The court has no power to impugn the Board’s decision unless it is vitiated by some public law error, such as misdirection in law, procedural unfairness, or irrationality in the decision.  The applicant has failed to establish or even identify any such public law grounds.

16.  The role of this court on appeal from the Court of First Instance is not to rehear or re-consider the application for leave to apply for judicial review, but to deal with an appeal or application for extension of time to appeal based on the grounds of appeal advanced.  The applicant has failed to advance any grounds to show how the Judge is said to have erred in dismissing his application for leave to apply for judicial review.

17.  In conclusion, we share the Judge’s view that there is no merit in the application for leave to apply for judicial review, and for the same reason, we are satisfied that extension of time should be refused. The applicant’s summons dated 17 May 2024 is accordingly dismissed.