RE DAR IRFAN HUSSAIN

CACV 277/2024, [2025] HKCA 29

On appeal from [2024] HKCFI 1545

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 277 OF 2024

(ON APPEAL FROM HCAL 1489 OF 2019)

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J U D G M E N T

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

1.  This is an appeal against the decision of Deputy High Court Judge KW Lung (“the Judge”)  given on 4 July 2024 refusing to extend time for the applicant to apply 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 (“the Board”)  dated 13 March 2018 dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”)  dated 31 August 2017 (“the Director’s Decision”)  rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Pakistan.  He entered Hong Kong illegally on 31 March 2008, and was arrested by the police on 13 May 2008.  Thereafter, he lodged a non-refoulement claim by way of a written representation on 20 August 2008.  

3.  The applicant’s claim was based on a fear of being harmed or killed by three sons of his paternal uncle, Sadiq.  The details of the applicant’s claim have been summarised by the Judge at [4] to [11] of the Judge’s decision (“the CALL-1 Form”)[1].

4.  By a Notice of Decision dated 31 August 2017 (i.e. the Director’s Decision), the Director decided against the applicant’s claim.  The Director’s Decision covered the BOR 2 risk[2], the BOR 3 risk[3], the persecution risk[4] and the torture risk[5].

5.  The applicant appealed against the Director’s Decision to the Board, for which an oral hearing was held on 29 January 2018.  The Board found, inter alia, that the risk of harm posed to the applicant was low, as he had never been harmed or assaulted by the three sons of Sadiq.  Moreover, there were suitable options of internal relocation available to the applicant which would minimise or reduce the risk of harm, if any.  Accordingly, the applicant’s appeal was dismissed by the Board’s Decision.

The Judge’s decision

6.  The applicant filed a Form 86 on 31 May 2019 (as amended by the Judge: see [3] of the CALL-1 Form)  seeking to judicially review the Board’s Decision.  In the Form 86 and his supporting affirmation filed on the same day, the applicant stated that he was dissatisfied with the Board’s Decision as such decision was “clearly unfair and unsatisfactory”.  He also emphasised that he would be “killed or harmed” should he return to his home country. 

7.  After summarising the facts and background of the case and giving due consideration to the Decisions of the Director and the Board, the Judge refused to extend time for the applicant, as well as refusing to grant leave for judicial review.  The Judge gave the following reasons in refusing leave to apply for judicial review at [21] to [26] of the CALL-1 Form:  

“21. As mentioned in paragraph 1, this application is late. In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1)  the length of delay; (2)  the reasons for the delay; (3)  the prospect of the intended appeal; and (4)  the prejudice to the putative respondent if extension of time was granted. I shall consider the merits of the applicant’s case.

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

23. 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.’

24. For the reasons the Board has given above, the Board found that the applicant will not be subjected to any of the applicable risks if he returns to his country. The applicant has not raised any valid ground to challenge the Board’s findings. There is no reason for this Court to interfere with the Board’s Decision.

25. In the circumstances, the applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.

CONCLUSION

26.  I refuse to extend time for the applicant to apply for leave to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.”

Grounds for appeal

8.  In the Notice of Appeal filed on 10 July 2024, the applicant set out his grounds of appeal, which may be summarised as follows:

(a)  he missed the deadline for making the leave application before the Judge, as he was being detained by the Immigration Department at the Castle Peak Bay Immigration Centre and thus did not receive the Board’s Decision in time;

(b)  he was disadvantaged in the proceedings because he was not provided with “any language or legal assistance”;

(c)  the Judge “overlooked the importance and extent of the unfairness caused by the absence of language and legal support” for the applicant;

(d)  the Judge failed to fix an oral hearing for the leave application.

9.  In his written submissions lodged on 7 November 2024, the applicant essentially repeated the matters he set out in the Notice of Appeal.

10.  We heard the appeal on 5 December 2024.  The applicant appeared at the hearing. Save that he informed the Court of the passing away of his parents in Pakistan, as well as his brother’s current residence in the UK, the applicant had nothing to add to the matters already stated in his Notice of Appeal and written submissions.

Discussion

11.  The primary decision-makers in a claim for non-refoulement are the Director and the Board.  They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The role of the court in judicial review is not to re-assess the non-refoulement claim.  The court will scrutinise the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality.  See Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(1)].

12.  In the application in the court below, the applicant provided no particulars as to any respects in which the Board was unreasonable or unfair in reaching its Decision, or how such Decision could be said to be Wednesbury unreasonable.

13.  As this court has repeatedly held, an application for leave for judicial review is not a rehearing of the appeal to the Board and the court’s role is not to act as an avenue of further appeal from the Board.  It is incumbent on the applicant to point out the procedural or other public law errors allegedly committed by the Board.  The Judge would not be required himself to come to a view on whether the applicant would face any of the proscribed risks of harm upon return.  The court should not usurp the role of the Board and will only intervene if public law grounds for doing so are established.  See Re Zunariyah [2018] HKCA 14, Re Qadir Sher [2018] HKCA 160, Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152, Re Rizwan alias Rizwan Gulistan [2018] HKCA 162, and Re Masoom Parvez [2018] HKCA 163.

14.  The applicant has failed to explain how and on which date he had come to learn of the Judge’s decision in the CALL-1 Form, and has accordingly failed to proffer any reasonable excuse for the delay of over 11 months in making the leave application.  The Judge was clearly right to refuse to extend time for the applicant.

15.  In any event, the applicant has in the Notice of Appeal failed to identify any error on the part of the Judge and thus failed to raise any viable ground of appeal.  As this court has often stated, an appeal to the Court of Appeal is not a fresh application for judicial review, it is necessary to identify some error on the part of the judge that would justify this court in intervening.  The applicant has failed to do so.

16.  The applicant’s complaint of prejudice by reason of his lack of proficiency in English is unfounded and of little or no merit.  We note that he was able to, either by himself or with assistance from others, lodge with the court applications and submissions written in comprehensible English.

17.  We are equally unpersuaded by the applicant’s complaint of a lack of legal representation, as it does not follow that the high standards of fairness applicable require that a non-refoulement protection claimant be absolutely entitled to legal representation at all stages of the screening process or the legal proceedings ensuing therefrom.  See Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 37 and Re Ahmed Syed Rafiq [2018] HKCA 178.

18.  As to the Judge’s alleged failure to fix an oral hearing for the leave application, we note that the applicant did not in the Form 86 nor the supporting affirmation request for an oral hearing.  The Judge was in the circumstances entitled to dispose of the leave application on paper.

19.  There is therefore no merit in the appeal and we dismiss the appeal accordingly.