Wajid Syed Zakir v. Torture Claims Appeal Board

CAMP 53/2025, [2026] HKCA 1561

On Appeal From [2024] HKCFI 3089

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 53 OF 2025

(ON AN INTENDED APPEAL FROM HCAL NO 757 OF 2022)

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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 out of time against the decision of Deputy High Court Judge Bruno Chan (“Judge”) dated 7 November 2024 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 8 June 2022.  In that decision, the Board dismissed the applicant’s appeal against the decision of the Director of Immigration (“Director”) dated 14 November 2018 rejecting his non-refoulement claim.

2.On 27 February 2025, the Judge refused to extend time for the applicant to appeal against his decision of 7 November 2024.

Background

3.The applicant is a national of Pakistan born in 1988.  His claim was made on the basis that if he returned to Pakistan, the local Sunni sectarian group in his home village, known as Sipa-Sahaba, would harm or kill him due to their religious disputes as the applicant is a Shia Muslim.  Details of the applicant’s background, the basis of his claim and arguments advanced before the Board as well as the Board’s reasons for rejecting his appeal are set out in [1] to [8] of the Form CALL-1.  The Judge has set out the grounds advanced by the applicant in support of the application and his reasons for refusal of the application: see [9] – [14] of the Form CALL-1.

The renewed application before this Court

4.By summons filed on 14 March 2025, the applicant made an application for leave to appeal against the Judge’s order dated 27 February 2025.  We shall treat this as a renewed application for an extension of time to appeal out of time against the decision of the Judge dated 7 November 2024 refusing leave for judicial review.

5.The applicant’s supporting affirmation was lengthy and contained more than 70 pages of documents.  In gist, the applicant stated that it was unfair to him as there was no legal and language assistance in preparation of the appeal and no translation of the Board’s decision was provided to him, that he reserved his right to submit further evidence orally or in writing upon the determination being read back to him in his own language, and that he requested an oral hearing.  The applicant’s grounds were, essentially, that the Director and the Board reached an unreasonable and unfair assessment, that the Director failed to consider state acquiescence, that the Board unreasonably demanded responses from the applicant and dismissed the applicant’s appeal based on findings that ought to have led to the appeal being allowed, and that the Board failed to provide the applicant with sufficient time and opportunity to arrange relevant evidence.  The applicant further stated that the Board failed to conduct a specific assessment of risk in relation to the applicant and his individual, personal circumstances; that the Board did not evaluate the risk specific to the applicant; that legal representation at the Director’s stage did not guarantee that personal specific risks were properly advanced and considered; that the Board failed to analyze the impact and challenges that the applicant might face if refouled; that the Board dismissed the appeal entirely on the basis of the applicant’s inability to recall specific dates and timelines; that the Board did not explore reasons for alleged inconsistencies, such as interpretation error or cultural differences; that the Judge failed to give him a chance to explain in the judicial review; and that he was unpresented without proper knowledge to address his judicial review.  The applicant submitted a document entitled “The Affirmation of the Applicant”, whereby he repeated the basis of his non-refoulement claim and the threats made against him.  He also stated that his cousin brother was killed in 2018, that people attacked and burned down his home in 2023, that his family members also received threats, and that he has a 4 year-old daughter.  Furthermore, the applicant provided four news articles of people that purportedly committed blasphemy and were killed by mobs.  He also annexed various documents, including purported news articles extracts, photographs of harm described by the applicant, uncertified translations of documents, and documents related to the applicant’s young daughter.

6.Pursuant to the directions of the Registrar of Civil Appeals, the applicant’s unsworn 10-page document entitled “The Affirmation of the Applicant” lodged with the court on 21 March 2025 is treated as the applicant’s written submissions.  In his submissions, the applicant mainly discusses his request to be released from detention.

7.On 4 December 2025, the court was notified by the Director that the applicant had been removed from Hong Kong in November 2025.  Accordingly, we determine this appeal on the basis of the written materials available.

Discussion

8.The applicant was late for about 2 weeks when he filed his initial summons on 5 December 2024.  In his supporting affirmation, the applicant referred to his written submissions, whereby he stated that the Board refused his appeal without solid reason, that the Director did not properly conduct a balancing exercise in the assessment of the available country of origin information, and that the Director considered the applicant’s evidence was largely his own speculation.  At the hearing before the Judge, the applicant explained that his delay was due to being unrepresented and being detained.

9.As this is not a very lengthy delay, we are prepared to focus on the merits of his intended appeal.

10.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’s decision, 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.

11.In the present case, we are satisfied that extension of time should be refused because of the lack of merits in the intended appeal.  In the absence of the applicant’s clarifications about the Board’s concerns relating to his credibility, despite given such opportunity to present his case and to explain himself, the Board assessed the available materials and information.  The Board rejected the applicant’s claims, because it found that, even if it accepted the applicant’s claims about the incident in 2015 and the first information report to the local police, the existence of an ongoing threat to the applicant’s safety if refouled was not established.  The Board, as the primary decision-maker, was entitled to come to these conclusions for the reasons given in its decision.

12.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.

13.As to the complaint about the lack of legal and language assistance, it has been repeatedly stated by the Court of Appeal that as a matter of law, it is not the case that a non-refoulement claimant is entitled to free legal representation at all stages of the process; nor does the high standard of fairness required by law entail an interpretation service being made available to an applicant at all times 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].  We note that all the court documents, including the extensively written documents annexed to the summons 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.  Further, we note that the applicant was legally represented in the preparation of the non-refoulement claim form, which formed the basis of his present claim.  Thus, we do not find the non-availability of legal representation in the processes before the court to amount to any procedural unfairness.

14.As for the materials annexed to the notice of appeal, the applicant did not provide any explanation about why some of these materials that predated the Board’s decision in 2022 were not submitted to the Board for consideration or submitted to the Judge in the court below.  In any event, the applicant has failed to provide any adequate explanation of the relevance of the newspaper articles and photographs to his present claim.

15.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.  It is apparent that the applicant has had sufficient opportunities to explain his case at the hearings before the Judge, contrary to his complaints raised in this respect.  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.

16.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 14 March 2025 is accordingly dismissed.

The Applicant, unrepresented, acting in person