BIN ILYAS MUHAMMAD USAMA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 136/2023, [2024] HKCA 293

On Appeal From [2023] HKCFI 42

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 136 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO 2542 OF 2018)

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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 10 January 2023[1] refusing to grant leave for the applicant 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 19 October 2018. In that decision, the Board dismissed the applicant’s appeal against the decision of the Director of Immigration (“Director”) dated 29 August 2017 rejecting his non-refoulement claim.

2.  On 9 March 2023, the Judge refused to extend time for the applicant to appeal against his decision of 10 January 2023.

Background

3.  The applicant is a national of Pakistan born in 1990.  He had entered Hong Kong illegally on 13 April 2015 and surrendered himself to the police on the same date.  He raised a non-refoulement claim by written signification dated 16 April 2015 on the basis that he would be harmed or killed by the family of his deceased friend, Muhammad Ali, (“Ali”) due to their belief that he and his other friend had murdered Ali, if he was refouled to Pakistan.

4.  The applicant’s claim was assessed by the Director with reference to all relevant risks, namely, BOR 3 risk,[2] persecution risk,[3] torture risk,[4] and BOR 2 risk.[5]  By a notice of decision dated 29 August 2017, the Director rejected the claim.

5.  The applicant appealed to the Board against the Director’s decision.  The Board held an oral hearing of the appeal on 18 July 2018, at which the applicant gave evidence and answered questions from the Board.  In its decision dated 19 October 2018, the Board dismissed the appeal and affirmed the decision of the Director.  The Board’s reasoning was succinctly summarised by the Judge at [8] of the Form CALL-1:

“ 8. Having considered the evidence, the Board found that his claim was not substantiated.  At the hearing, the Board raised concerns with the applicant in relation to the discrepancies in his oral evidence and those in his written statement regarding to the events of the murder, police visit and his relocation to Karachi [60]-[73].  However, it considered that the applicant’s responses did not explain these inconsistencies [74].  Further, despite his repeated promise to submit documents in support, the applicant failed to do so [79]-[84].  In these premises, the Board concluded that the applicant was not a witness of truth and his claim was not credible [85]-[89].”

The Judge’s decisions in the court below

6.  On 12 November 2018, 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, without specifying any grounds in that form.  In the supporting affirmation, the applicant merely annexed the Board’s decision dated 19 October 2018.

7.  The Judge considered the application on the basis of the documents alone as the applicant did not request an oral hearing.  On 10 January 2023, the Judge issued his decision to refuse to grant leave to apply for judicial review.  The reasons were set out in [12] to [17] of the Form CALL-1 as follows:

“ 12. 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).

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

14. 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.’

15. There is no valid reason to challenge the Board’s Decision.

16. 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.

17. The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.”

8.  More than two weeks after the expiry of the 14 days’ time limit, the applicant filed a summons on 13 February 2023 together with a supporting affirmation to apply for extension of time for filing the notice of appeal.  In his affirmation, the applicant stated that the reason for his late application was because he did not receive any letter from the Court of First Instance.  On 9 March 2023, the Judge issued his decision in writing refusing to extend time for appeal on the ground that the applicant had failed to show any realistic prospect of success in his intended appeal.

The renewed application before this Court

9.  On 3 April 2023, the applicant filed in the Court of Appeal a summons for an “application for extension of time of appeal be refused and the Summons be dismissed” and stated that the Judge was wrong in accepting the Board’s findings as he did not consider all applicable grounds concerning non-refoulement, such as articles 2 and 22 of the Hong Kong Bills of Rights Ordinance.  Despite the defective form of the applicant’s summons, we shall treat it as a renewed application for an extension of time to appeal against the decision of the Judge dated 10 January 2023 refusing leave for judicial review. 

10.  In the applicant’s supporting affirmation, he stated that he did not want to return to his country as his life was still in danger and he apologized for the late appeal.

11.  The applicant lodged written submissions on 17 April 2023 in accordance with the directions of the Registrar of Civil Appeals dated 3 April 2023.  It consisted of citing many cases relating to the general legal principle of high standards of fairness but with no specific application to his case.

12.  Pursuant to Order 59 rule 14A of the Rules of the High Court, we find it appropriate to determine this application on the basis of the written materials without an oral hearing.

Discussion

13.  The applicant was late for more than two weeks when he filed his initial summons on 13 February 2023. In his supporting affirmation, the applicant stated that the reason for his delay was that he did not receive the decision from the Court of First Instance by post, but gave no particulars or supporting details.   As this is not a very lengthy delay, however, we are prepared to focus on the merits of his intended appeal.

14.  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.

15.  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 he not a witness of truth as to why he left Pakistan or why he did not want to return.  The Board did not accept that the applicant was a murder suspect who was charged but acquitted, that he avoided the police on a number of occasions, and that Ali’s family had threatened to harm or kill him.  The Board considered that the applicant had poor credibility and reliability due to his inconsistent recounts of past incidents in his oral and written testimonies, and due to his failure to provide supporting documents which he indicated he could supply on a number of occasions.  The Board, as the primary decision-maker, was entitled to come to these conclusions for the reasons given in its decision.

16.  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.

17.  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.  In the summons, the applicant had made reference to articles 2 and 22 of Section 8 of the HKBORO with no details of their specific application to his case.  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. 

18.  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 3 April 2023 is accordingly dismissed.