MAHMOOD DANISH ARSHAD (DANISH ARSHAD MEHMOOD alias DANISH ARSHAD MOHMOOD) v. TORTURE CLAIMS APPEAL BOARD

CAMP 192/2024, [2025] HKCA 231

On Appeal From [2021] HKCFI 1597

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 192 OF 2024

(ON AN INTENDED APPEAL FROM HCAL NO 1235 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 Bruno Chan (“Judge”) dated 3 June 2021,[1] which refused to grant the applicant an extension of time for leave to apply 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 7 August 2017. In that decision, the Board dismissed the applicant’s appeal against the decision of the Director of Immigration (“Director”) dated 12 January 2017 rejecting the applicant’s claim in relation to BOR 2 risk.[2]

Background

2.  The Applicant is a 44-year-old national of Pakistan who entered Hong Kong illegally on 29 October 2006 and was arrested by the police on 3 January 2008. After he was referred to the Immigration Department for investigation, he raised a torture claim, later taken as a non-refoulement claim, on the basis that if he returned to Pakistan he would be harmed or killed by a local gangster over some personal dispute. He was subsequently released on recognizance pending the determination of his claim.

3.  The applicant’s claim was initially assessed by the Director with reference to BOR 3 risk,[3] persecution risk[4] and torture risk[5] (i.e. without BOR 2 risk). By notice of decision dated 16 January 2015, the Director rejected his claim.

4.  The applicant appealed to the Board against the said Director’s decision. The Board held an oral hearing of the appeal on 2 October 2015, during which the applicant gave evidence and answered questions from the Board. The Board found there was no evidence of ill-treatment or harm being inflicted on the applicant by the gangster that reached the requisite level of severity, while the applicant’s credibility was also undermined given his delay in raising his non-refoulement claim. In any event, both state protection and internal relocation would be available to the applicant upon his return to Pakistan.

5.  Accordingly, the Board found the applicant faced no real risk of harm upon refoulement to Pakistan. By its written decision dated 2 December 2016, the Board dismissed the applicant’s appeal in respect to BOR 3 risk, persecution risk and torture risk and affirmed the decision of the Director.

6.  On the Director’s own initiative, the applicant was invited to submit any further material he had for consideration of his claim under BOR 2 risk, but he did not respond. By notice of further decision dated 12 January 2017, the Director rejected the applicant’s claim in relation to BOR 2 risk.

7.  The applicant then appealed to the Board against the Director’s decision dated 12 January 2017. As the Board did not see the need or justification to organise another oral hearing, the case was proceeded on such basis.

8.  On 7 August 2017, the Board dismissed the applicant’s appeal and confirmed the Director’s further decision dated 12 January 2017 as the applicant had failed to submit any additional facts to establish a case under BOR 2 Risk.

The Judge’s decisions in the court below

9.  More than 7 months after the expiry of 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 29 June 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 on 7 August 2017. In his supporting affirmation, he did not specify any ground, but merely stated that he was not satisfied with the Board’s decision as his life would still be in danger upon returning to his home country. A hearing was conducted on 29 April 2021 during which the applicant asserted that the delay was due to his detention between March and August 2018 in the Castle Peak Bay Immigration Centre.

10.  On 3 June 2021, the Judge issued his decision refusing to extend time for the applicant to apply for leave for judicial review and dismissing his application for leave to apply for judicial review. The reasons were set out in [16] to [21] of the Form CALL-1 as follows:

“ 16. The Applicant did not produce any documentary evidence in support of his assertion, but even assuming that he was indeed being detained at CIC during that time, as the record shows that the Board’s decision was sent on 7 August 2017 to his then reported address without being returned through undelivered post, and hence even on his own case that it was some 7 months prior to his alleged detention at CIC in March 2018, and that even thereafter when he was in detention at CIC that he was still able to file his Form 86 in June 2018. As such his explanation of being detained at CIC between March and August 2018 cannot by itself be accepted as any reason for his late application, let alone for such a serious delay.

17. As for the merits, if any, of his intended application, as noted above the Applicant has failed to put forth any proper grounds for his intended challenge, and in the absence of any error of law or irrationality or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any merits in his intended application either.

18. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

19. In the present case, even on the facts of the Applicant’s own case at the highest, and in the light of the scope and threshold of a BOR 2 claim, there is simply no room for engaging the BOR 2 ground in the Applicant’s claim, and as it has been established by both the Director and the Board in their earlier decisions that the risk of harm in his claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other parts of Pakistan, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

20. In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

21. For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reason for his serious delay, I refuse to extend time and accordingly dismiss his leave application.”

11.  More than 2 years 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 24 August 2023 together with a supporting affirmation to apply for extension of time for filing a notice of appeal. Again, no ground was specified and the applicant merely asserted that both the decisions of the Immigration Department and the Board were unfair as his life would still be in danger upon returning to his home country.

12.  On 28 September 2023, a hearing was conducted during which the applicant explained that the delay was due to his detention by the police over some criminal offences and that he had also lost all his court documents including the Judge’s decision of 3 June 2021.

13.  On 12 October 2023, the Judge issued his decision in writing refusing the applicant’s application for extension of time to appeal. The Judge did not accept the applicant’s explanation for such substantial delay and held that in any event, he had failed to show any realistic prospect of success in his intended appeal.

The renewed application before this Court

14.  After another lengthy delay, by summons filed on 10 October 2024, the applicant made an application to this Court for leave to appeal the Order of the Judge dated 12 October 2023 out of time. We shall treat this as a renewed application for extension of time to appeal against the Judge’s decision dated 3 June 2021, which refused to extend time and dismissed the applicant’s application for leave to apply for judicial review.

15.  In the applicant’s supporting affirmation, he first reiterated that he would be subject to serious danger upon return to Pakistan. The applicant then claimed there was procedural unfairness as he had neither legal nor language assistance, and that he was not given an oral hearing. He therefore specifically requested a hearing for his present application. After that, he recited general legal principles concerning assessment of non-refoulement claims and then stated the following grounds to support his appeal:

(1)  There was no assessment of risk specific to his individual circumstances.

(2)  He might be subject to extra judicial killing in addition to economic difficulties in Pakistan.

(3)  The Adjudicator focused on minute and irrelevant matters in determining his credibility. It failed to consider country of origin information.

(4)  There was a breach of the high standard of fairness.

(5)  The decision was Wednesbury unreasonable.

(6)  The Judge did not give him a chance to explain.

16.  Towards the end of his affirmation, the applicant explained that he was late for his application because (i) his account was seized by the Department of Justice; (ii) the Immigration Department brought him to the airport five times and (iii) he did not have enough money. Finally, he attached documents including First Information Report, Pakistani court documents and two statements to support his case.

17.  In the written submissions lodged by the applicant on 21 November 2024, he merely repeated the basis and history of his non-refoulement claim. 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

18.  The applicant was more than 2 years late when he filed his initial summons on 24 August 2023. He did not give any explanation for his delay in his supporting affirmation, but asserted during the oral hearing before the Judge that it was due to his detention by the police and the loss of documents.

19.  The 26-month delay was very substantial and the applicant’s explanation for the delay had also been rejected by the Judge in his decision dated 12 October 2023. Nevertheless, we would proceed to consider the merits of his intended appeal.

20.  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.

21.  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 rejected his claim under BOR 3 risk, persecution risk and torture risk because there was no evidence that the ill-treatment or harm being inflicted on him reached the requisite level of severity while his delay in raising a non-refoulement claim also undermined his credibility. The Board further found that both state protection and internal relocation would be available upon his return to Pakistan. As the applicant failed to submit any additional facts to establish his claim under BOR 2 Risk, the Board also rejected his BOR 2 claim. The Board, as the primary decision-maker, was entitled to come to these conclusions for the reasons given in its decision.

22.  Regarding the complaints about lack of language assistance and legal advice, we note that all the Court documents filed in this appeal and in the Court below were in English. It is thus clear that either the applicant was himself conversant with the English language or he had access to language assistance of his own if he found it necessary. It has been repeatedly stated by the Court of Appeal that as a matter of law, a non-refoulement claimant is not entitled to free legal representation at all stages of the process and that the high standard of fairness required by law does not entail interpretation service being made available to an applicant all the time as he desires: Re Zunariyah [2018] HKCA 14 at [18]; Re Zahid Abbas [2018] HKCA 15 at [11] and Re Tariq Farhan [2018] HKCA 17 at [11]. In any event, the applicant was legally represented in the initial preparation of his case by the completion of the non-refoulement claim form and screening interview with the Director, which formed the basis of his claim. We do not find the non-availability of legal representation in the processes before the Board or the court to amount to any procedural unfairness.

23.  Contrary to the applicant’s claim that there was no oral hearing, we note that the Judge had in fact heard the applicant on 29 April 2021 and 28 September 2023. As to the remaining arguments raised by the applicant, they consist of mere general and bald assertions without any particulars. They do not constitute viable grounds of appeal: see Re Salim Ahmed [2020] HKCA 244 at [20].

24.  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.

25.  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.

26.  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 10 October 2024 is accordingly dismissed.