Qasim Muhammad v. Torture Claims Appeal Board

CAMP 22/2024, [2024] HKCA 385

On An Intended Appeal From [2023] HKCFI 1342 &

[2023] HKCFI 3069

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 22 OF 2024

(ON AN INTENDED APPEAL FROM HCAL NO 834 OF 2019)

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J U D G M E N T

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Hon Chow JA (giving the Judgment of the Court):

1.On 31 January 2024, the Applicant took out a summons to apply for an extension of time to appeal against the order of Deputy High Court Judge K W Lung (“the Judge”) dated 31 May 2023 (“the Order”) refusing to grant leave to apply for judicial review.

2.The intended judicial review was against the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 11 February 2019, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 9 January 2018 rejecting the Applicant’s non-refoulement claim.

3.Having considered the documents before us, we are of the view that it is appropriate to determine this application on paper without a hearing pursuant to Order 1A, Rule 4 and Order 59, Rule 14A of the Rules of the High Court, Cap 4A.

BACKGROUND

4.The Applicant is a national of Pakistan. He entered Hong Kong illegally on 20 February 2016 and was arrested by the police on the same day. On 22 February 2016, he lodged a non-refoulement claim on the basis that, if refouled, he would be harmed or killed by his paternal uncle due to a land dispute. Details of the Applicant’s claim have been summarised by the Judge at §§4-5 of the CALL-1 Form ([2023] HKCFI 1342).

5.By a Notice of Decision dated 9 January 2018, the Director rejected the Applicant’s non-refoulement claim on all applicable grounds, namely, risk of torture[1], BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4] (“the Director’s Decision”).

6.The Applicant appealed the Director’s Decision to the Board. On 11 February 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 have been summarised by the Judge at §§9-10 of the CALL-1 Form:

“[9] Having considered the evidence, the Board made the following findings. First, it was not uncommon to have land disputes which were often settled by force in Pakistan as shown in the country of origin information (‘COI’) [86]. Nevertheless, the Board was not persuaded that the uncle had intention to cause harm or even kill the applicant for the land after assessing the uncle’s past behaviors [88]. Insofar as his claim of being framed by his uncle for the aforesaid assassination, the Board rejected it as it was not credible [89]. Secondly, on the applicant’s own evidence, he was able to travel without encountering any troubles [91]. Thirdly, the applicant was not the registered owner of the disputed land, nor was he the eldest son, and it was unreasonable that his uncle would target him [92]. Fourthly, the inconsistencies in his claim also undermined his credibility [93]. Fifthly, the applicant could have resolved the land dispute with the available mechanism in his home country [94]. Sixthly, the Board refused to accept the applicant’s version that the dispute escalated [95]. Finally, the applicant’s prolonged stay in Pakistan and his delay in seeking protection also indicated that there was no real risk of harm [96]-[97].

[10] In addition, the Board rejected the applicant’s claim that his uncle was influential enough to seek help from the political group to locate and harm him [99]-[104]. In any event, state protection and internal relocation were both shown in the COI as available to the applicant [105]-[112].”

7.On 26 March 2019, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision. No ground for review was given in the Form 86, except a bare statement that he had some real problem and just requested that he be permitted to stay until his problem had been resolved. In his affirmation of the same date, the Applicant stated that his life was at risk in his native country, and requested the court to review his case and let him stay in Hong Kong until his problem had been resolved.

THE JUDGE’S DECISION

8.On 31 May 2023, the Judge refused to grant the Applicant leave to apply for judicial review, for the following reasons:

“[14] 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…

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

…

[17] The Board had assessed his case and, for the reasons given, did not accept his evidence on the facts of his case. The grounds in [his affirmation] are not valid to challenge the Board’s Decision.

[18] 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.

9.On 4 October 2023, the Applicant applied by summons for an extension of time to appeal against the Order. On 14 December 2023, the Judge refused the Applicant’s application, holding, inter alia, that there was no realistic prospect of success in his intended appeal.

THIS APPLICATION

10.By a summons taken out on 31 January 2024 in the Court of Appeal, the Applicant renewed his application for an extension of time to appeal against the Order. In the summons, the Applicant stated that he did not receive “any letter” at his new address, and he did not know he had to inform the court of his change of address.

11.In his written submissions dated 9 February 2024, the Applicant set out some general principles of law relating to assessment of non-refoulement claims, but failed to explain how those principles were relevant or applicable to his case. The Applicant also stated that he could not relocate to anywhere in Pakistan, and referred to what he alleged to be the current political situation in Pakistan.

DISCUSSION

12.In deciding whether to extend time to appeal against the Order, the court will take into account the length of the delay, the reasons for the delay, the chances of the appeal succeeding, and the degree of prejudice to the other party if an extension of time is granted.

13.The prospect of success of an intended appeal is important. The court will not grant an extension of time to appeal for a hopeless appeal to be pursued: Re Adumekwe Rowland Ejike [2019] HKCA 702, at §19.

14.The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524, at §14. In particular, 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 of Appeal’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst, at §14(6)).

15.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 is an error of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022.

16.The Applicant has failed to identify any error in the Judge’s decision of 31 May 2023, or raise any viable ground of appeal against the Order.

17.There is no prospect of success in the Applicant’s intended appeal. It is thus futile to grant the Applicant any extension of time to appeal against the Order.

DISPOSITION

18.The application for extension of time to appeal is refused, and the Applicant’s summons taken out on 31 January 2024 is dismissed.

The Applicant, acting in person