HAROON MUHAMMAD v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 146/2025, [2025] HKCA 796

On Appeal From [2025] HKCFI 809

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 146 OF 2025

(ON APPEAL FROM HCAL NO 2613 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 K W Lung (“the Judge”)  dated 11 March 2025 (“the Order”)  refusing to grant leave to the Applicant to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”)  dated 22 January 2019, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”)  dated 29 January 2018.

BACKGROUND

2.  The Applicant is a national of Pakistan.  He arrived in Hong Kong on 9 August 2011, but was refused entry.  Prior to his arrival in Hong Kong, he raised a torture claim[1] by a letter sent by his then legal representative via fax on 8 August 2011[2].  On 12 October 2012, his torture claim was refused.  He did not appeal against the refusal of his torture claim to the Board[3].

3.  On 18 January 2013, the Applicant was convicted of the offence of using a false instrument and sentenced to 8 months’ imprisonment.  On 29 May 2013, he lodged a non-refoulement claim, which was assessed by the Director on all applicable ground other than the risk of torture.  His claim was made on the same basis as his torture claim[4].  He claimed that, if refouled, he would be harmed or killed by the family members of two police officers whom his father shot dead in early 1989.  He also claimed that the police officers that his father shot dead and their family members were supporters of the Pakistan People’s Party, but the Applicant supported another political party named Pakistan Tehreek-E-Insaf[5].  Details of the Applicant’s claim have been summarised by the Judge at §§3 and 4 of his judgment dated 11 March 2025 (“the Judgment”).   

4.  By a Notice of Decision dated 29 January 2018 (“the Director’s Decision”), the Director dismissed the Applicant’s non-refoulement claim on all remaining applicable grounds: BOR 2 risk[6], BOR 3 risk[7], and persecution risk[8].

5.  The Applicant appealed the Director’s Decision to the Board.  On 22 January 2019, the Board dismissed the Applicant’s appeal, and confirmed the Director’s Decision (“the Board’s Decision”).  The Board’s reasons for its decision were summarised by the Judge at §§9 and 10 of his Judgment, as follows:

“[9] The Board found that his evidence was in contradiction with his evidence given to the Director, which the Board considered undermined the [Applicant’s] credibility [37]. Even so, the Board was willing to give the [Applicant] the benefit of the doubt and accepted the core of his claim, but found that this was a private dispute between the [Applicant] and the family of the dead police officers [38-40].

[10]  Having considered the evidence, the Board found that the [Applicant] had substantiated a real risk under BOR 2 and/or BOR 3 [40].  However, the Board found that internal relocation to Hyderabad would be reasonable and he will not suffer undue hardship [42-45].  In conclusion, the Board held the [Applicant’s] claim failed under all applicable grounds.  It therefore dismissed his appeal and confirmed the Director’s Decision.”

THE JUDGMENT

6.  On 9 September 2019, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision.  By then, he was more than 4 months late in making his leave application.  No ground for seeking relief was given in the Form 86 or in his supporting affirmation.  Nor was there any explanation provided by the Applicant for the delay.

7.  The Judge held a hearing of the leave application on 10 February 2025.  On 11 March 2025, the Judge gave his Judgment 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, for the following reasons:

“[13] …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.

[14] The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the [Applicant] said that he could not say that the Board was wrong. Nevertheless, he asked the Court to review the Board’s Decision.

…

[16] 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.

[17]  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.”

THIS APPEAL

8.  In his Notice of Appeal filed on 21 March 2025, the Applicant states the following:

“[The Applicant] will face hardship if he is to return back to his home country and that the Torture Claims Appeal Board has significantly relied on the source of news which is not officially recognized, or it is simply hearsay. They have also relied on some cases which are outdated considering the dramatic changes. The lack of credible source of information has resulted in them making groundless speculations.” [sic]

9.  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

10.  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.

11.  There was a delay of more than 4 months by the Applicant in seeking leave to apply for judicial review in the present case. He has not offered any explanation for the delay.  In any event, this Court will go on to consider the merits of the appeal.

12.  In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, 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’s role is not to examine the Board’s decision afresh as if it was a fresh application for judicial review (see Nupur Mst v Director of Immigration [2018] HKCA 524, at §14(6)).

13.  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 decision of the Board is shown in the present case.

14.  The Applicant has failed to identify or show any error in the Judgment refusing to extend time for him to apply for leave to apply for judicial review, or grant leave to apply for judicial review.  He has failed to raise any viable ground of appeal against the Order.  

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