MUHAMMAD QASIM v. TORTURE CLAIMS APPEAL BOARD

CAMP 86/2025, [2025] HKCA 764

On Appeal From [2025] HKCFI 1042

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 86 OF 2025

(ON AN INTENDED APPEAL FROM HCAL NO 93 OF 2020)

________________________

________________________

________________________

J U D G M E N T

________________________

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 Michael Wong (“Judge”)  dated 18 March 2025[1] dismissing the applicant’s application for leave to apply for judicial review.  The intended judicial review is against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”)  dated 23 December 2019.  In that decision, the Board dismissed the applicant’s appeal against the decisions of the Director of Immigration (“Director”)  dated 18 September 2013 and 24 August 2018 rejecting his non-refoulement claim under all applicable grounds.

2.  On 29 April 2025, the Judge refused to extend time for the applicant to appeal against his decision of 18 March 2025.

Background

3.  The applicant is a national of Pakistan.  He entered Hong Kong on 20 March 2001 and had overstayed since 28 March 2001.  The applicant was subsequently arrested by the police on 3 December 2006.  He raised a torture claim on 22 August 2007 on the basis that the father (Anwar Khan)  and family of his girlfriend, Sakeena Khan, would harm or kill him due to their relationship together, if he was refouled to Pakistan.

4.  The applicant’s claim was initially assessed by the Director with reference to torture risk[2].  By notice of decision dated 18 September 2013, the Director rejected the claim.

5.  The applicant’s claim was subsequently also assessed by the Director under the Unified Screening Mechanism in relation to the remaining relevant risks, namely, BOR 3 risk,[3] persecution risk,[4] and BOR 2 risk.[5]  By notice of decision dated 24 August 2018, the Director rejected the claim as well.

6.  The applicant appealed to the Board against the Director’s two decisions respectively and the Board dealt with these appeals together.  The Board held an oral hearing on 18 November 2019, at which the applicant gave evidence and answered questions from the Board.  In its decision dated 23 December 2019, the Board dismissed the appeals and affirmed the decisions of the Director.  The Board’s reasoning was summarised by the Judge at [15] to [18] of the Form CALL-1:

“ 15.  It is noted that the Board held an oral hearing on 18 November 2019.  The applicant was present and was given the chance to supplement what he had stated in his claim and to present his grounds of appeal to the Board in person.  The Board also questioned him to clarify certain matters. The Board carefully assessed the applicant’s claim on those matters asserted by him, but the Board found AK had no genuine intention to harm or kill him.  The Board further found that even if AK was rich and influential as claimed, there was no evidence to suggest that his influence reached beyond the applicant’s home village or that he was resourceful enough to locate him had he moved to stay in other parts of the country.

16.  The Board also re-assessed the applicant’s claim on all the applicable grounds under the USM, namely:-

(a)  risk of torture under Part VIIC of the Immigration Ordinance;

(b)  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;

(c)  risk of violation of right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance; and

(d)  risk of persecution with reference to the non-refoulement principles under Article 33 of the 1951 Convention Relating to the Status of Refugees  and its 1967 Protocol.

17.  After due consideration of the law and the evidence as presented by the applicant, the Board found that the applicant was never even harmed by AK.  AK only verbally threatened him because of his relationship with his daughter.  The applicant’s feared ill-treatment, risk of right to life, risk of torture and risk of persecution are unlikely to materialise.  Hence, the Board came to the conclusion that the applicant was not entitled to non-refoulement protection under any of the applicable grounds.

18.  In assessing the viability for the applicant’s internal relocation, the Board had referred to objective country of origin information for the applicant’s country.  The Board noted the applicant’s evidence that he was free from any trouble from AK when he moved to stay with his friend in Jalaliya and when he stayed in a shelter in another place before his departure from Pakistan.  While concluding that the applicant was not facing any real and substantial threats should he return to his home country, the Board was minded to assess that the applicant being an able-bodied adult could safely relocate to other places within Pakistan without undue hardship.”

The Judge’s decisions in the court below

7.  On 9 January 2020, 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 dated 23 December 2019, as ascertained by the Judge.  He did not specify any ground in that form.  In the supporting affirmation, the applicant stated that the Director disregarded his dangerous situation.

8.  The Judge considered the application on the basis of the documents alone as the applicant did not request an oral hearing.  On 18 March 2025, the Judge issued his decision to dismiss the application for leave for judicial review.  The reasons were set out in [12] to [21] of the Form CALL-1 as follows:

“ 12. The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. 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 court will scrutinize 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).

13. In Po Fun Chan v Winnie Cheung (2007)  10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be a reasonably arguable claim which enjoyed realistic prospects of success.

14. The applicant did not advance any specific ground for the intended judicial review, but just made a bare allegation that the Immigration Department disregarded his dangerous situation. Despite the lack of specific grounds and for the sake of completeness, the court will still examine and scrutinize the Board’s Decision for any error of law, procedural unfairness and irregularities.

15. It is noted that the Board held an oral hearing on 18 November 2019. The applicant was present and was given the chance to supplement what he had stated in his claim and to present his grounds of appeal to the Board in person. The Board also questioned him to clarify certain matters. The Board carefully assessed the applicant’s claim on those matters asserted by him, but the Board found AK had no genuine intention to harm or kill him. The Board further found that even if AK was rich and influential as claimed, there was no evidence to suggest that his influence reached beyond the applicant’s home village or that he was resourceful enough to locate him had he moved to stay in other parts of the country.

16. The Board also re-assessed the applicant’s claim on all the applicable grounds under the USM, namely:

(a)  risk of torture under Part VIIC of the Immigration Ordinance;

(b)  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;

(c)  risk of violation of right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance; and

(d)  isk of persecution with reference to the non-refoulement principles under Article 33 of the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol.

17. After due consideration of the law and the evidence as presented by the applicant, the Board found that the applicant was never even harmed by AK. AK only verbally threatened him because of his relationship with his daughter. The applicant’s feared ill-treatment, risk of right to life, risk of torture and risk of persecution are unlikely to materialise. Hence, the Board came to the conclusion that the applicant was not entitled to non-refoulement protection under any of the applicable grounds.

18. In assessing the viability for the applicant’s internal relocation, the Board had referred to objective country of origin information for the applicant’s country. The Board noted the applicant’s evidence that he was free from any trouble from AK when he moved to stay with his friend in Jalaliya and when he stayed in a shelter in another place before his departure from Pakistan. While concluding that the applicant was not facing any real and substantial threats should he return to his home country, the Board was minded to assess that the applicant being an able-bodied adult could safely relocate to other places within Pakistan without undue hardship.

19. It is therefore utterly not true that the Board had disregarded the applicant’s dangerous situation.

20. Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM, the burden of proof and the standard of proof. The Board also correctly identified the issues and observed a very high standard of fairness. This court could detect no error of law, procedural unfairness or irrationality in the Board’s Decision.

21. The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision.  Thus, the intended judicial review has no realistic prospects of success at all, and the Leave Application must be dismissed.”

9.  One day 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 2 April 2025 together with a supporting affirmation to apply for extension of time for filing the notice of appeal.  In his affirmation, the applicant stated that he did not receive the order within 14 days and that he should be given a reasonable opportunity to present his case.  On 29 April 2025, the Judge issued his decision in writing refusing to extend time for appeal on the ground that the applicant had failed to show any reasonable prospect of success in his intended appeal.

The renewed application before this Court

10.  By summons filed on 30 April 2025, the applicant made an application for leave to appeal against the decision of the Judge dated 18 March 2025 refusing leave for judicial review.  We shall treat this as the applicant’s renewed application. 

11.  In the applicant’s supporting affirmation, he stated that he did not receive the Form CALL-1 dated 18 March 2025 and related documents, due to the documents being lost in the post, so he had already missed the deadline to appeal and could only get the documents from conducting a court search.

12.  The applicant has lodged written submissions in which he recited the general legal principles of the high standards of fairness and Wednesbury unreasonableness, without specific application to his own case.

13.  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

14.  The applicant was late for 1 day when he filed his initial summons on 2 April 2025.  In his supporting affirmation, the applicant stated that he did not receive the Form CALL-1 dated 18 March 2025 and related documents, due to the documents being lost in the post, so he had already missed the deadline to appeal and could only get the documents from conducting a court search.  However, at the court hearing before the Judge, he explained that his reason for delay was due to the wrong computation of the deadline by excluding Saturdays and Sundays.   As this was a short delay even though the applicant’s explanation for the delay appears unconvincing, we are prepared to focus on the merits of his intended appeal.

15.  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.

16.  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 considered that the risk of harm was localized, that the past  incidents did not reach the requisite level of severity, and that internal relocation to other places within Pakistan was a viable option for the applicant.   The Board, as the primary decision-maker, was entitled to come to these conclusions for the reasons given in its decision.

17.  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.

18.  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.

19.  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 30 April 2025 is accordingly dismissed.