AHMAD ASHFAQ v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 63/2023

[2023] HKCA 397

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 63 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO 3355 OF 2019)

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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 7 November 2022[1] refusing to extend time for the applicant to apply for, and refusing to grant, 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 29 April 2019.  In that decision, the Board dismissed the applicant’s appeal against the decision of the Director of Immigration (“Director”) dated 11 October 2017 rejecting his non-refoulement claim.

2.  On 18 January 2023, the Judge refused to extend time for the applicant to appeal against his decision.[2]

Background

3.  The applicant is a national of Pakistan born in 1982.  He claims to have entered Hong Kong illegally on 18 May 2007.  He was arrested by the police on 19 March 2009. Thereafter he made a torture claim, which was rejected by the Director.  His petition against the Director’s decision was dismissed by the Board on 28 September 2010.  In 2014, the applicant lodged a non-refoulement claim by written representations.  His claim is based on the fear that if he returns to Pakistan, he will be harmed or killed by the father of a friend who holds the applicant responsible for his friend’s death in a motorcycle accident.  The applicant also claims that he will be arrested on a false charge relating to that accident.

4.  The applicant’s claim was assessed by the Director with reference to all relevant risks except torture risk[3] (which had been determined in his previous claim), namely, BOR 3 risk,[4] persecution risk,[5] and BOR 2 risk.[6]  By a notice of decision dated 11 October 2017, the Director rejected the claim. 

5.  The applicant appealed to the Board against the Director’s decision.  An oral hearing was held by the Board on 3 April 2018, at which the applicant gave evidence and answered the Board’s questions.  The Board found there were significant areas of divergence between the applicant’s accounts given to the Director over time and that given to the Board, and that the applicant was unable to give a reasonable explanation for the differences.  The Board also noted that the applicant shifted and changed his evidence when questions were put to him.  The Board found that the copy of the FIR (first information report) submitted by the applicant was inconsistent with other evidence and not genuine.  The Board concluded that the applicant had “fabricated and concocted his evidence to advance a claim for non-refoulement protection”, and found that he would not be at risk of harm from his friend’s father or the police should he return to Pakistan.  Accordingly, in its decision dated 29 April 2019, the Board dismissed the appeal and affirmed the decision of the Director. 

The Judge’s decisions in the court below

6.  On 11 November 2019, 3.5 months after the 3-month time limit prescribed by Order 53 rule 4(1) of the Rules of the High Court (Cap 4A) for judicial review, the applicant, through his solicitors Chaudhry Solicitors, 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 or in the accompanying affirmation.

7.  The Judge held a hearing on 29 September 2022, but was told by counsel that the applicant had not been in contact with his solicitors for a long time, so that they were unable to obtain instructions and make submissions.  The Judge granted leave for the solicitors to cease to act for the applicant, and proceeded to deal with the application on the basis of the available materials.  On 7 November 2022, the Judge issued his decision, refusing to extend time or to grant leave to apply for judicial review.  The reasons were set out at [12] – [18] of the Form CALL‑1 as follows:

“ 12. 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. The deadline of his application is on 29 July 2019. The delay is serious. He has given no explanation for his delay and his application can be dismissed on this basis alone. However, I shall first consider the merits of the applicant’s case.

13. 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).

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

15. 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.’

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

17. 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.

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

8.  The applicant did not appeal within the 14-day period prescribed by Order 53 rule 3(4) of the Rules of the High Court, but took out a summons on 1 December 2022 to seek an extension of time to appeal against the decision of the Judge.  In the summons he stated that he did not get the decision of the High Court on time.

9.  The Judge dealt with the application for extension of time on paper.  In his written decision handed down on 18 January 2023, the Judge refused to extend time on the ground that the applicant had not shown any reasonable prospect of success in his intended appeal.

The renewed application before this Court

10.  By summons filed on 10 February 2023, the applicant made an application to this court for extension of time for him to appeal.  He did not set out any intended grounds of appeal in the summons or the affirmation in support.

11.  In his written submissions lodged on 24 February 2023, he complained about politicians in Pakistan and said that he had become an enemy of all the corrupt leaders.  He said there were many reasons why he came to Hong Kong and apply for protection.  He said he was not satisfied with the previous decisions and asked for leave to appeal to the Court of Appeal.

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.  Having considered the available materials, we are satisfied that extension of time should be refused because of the lack of merits in the intended appeal.  In the present case, the Board received the applicant’s evidence at the hearing, and found his account incredible because of the inconsistencies between his different accounts and the way the applicant had changed his evidence without reasonable explanation. The Board found that the applicant’s allegations were fabricated and should be rejected.  This is a conclusion that the Board, as the primary decision-maker, was entitled to come to, for the reasons it gave in its decision.  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 identify, let alone substantiate, any such public law grounds.

14.  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 refusing to extend time and to grant leave for judicial review.  Having considered the materials available, we share the Judge’s view that there is no merit in the application out of time for leave to apply for judicial review. 

15.  We do not see any prospect of success in the intended appeal.  The applicant’s summons is accordingly dismissed.

[1]  [2022] HKCFI 3339.

[2]  [2023] HKCFI 60.

[3]  This refers to the risk of torture under Part VIIC of the Immigration Ordinance (Cap 115).

[4]  This refers to the 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 (Cap 383).

[5]  This refers to the risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.

[6]  This refers to the risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).