SAJJAD MUHAMMAD v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

1.   The Form 86 be amended on the court’s own motion.

2.   There shall be an extension of time for the applicant to file the application for leave to apply for judicial review out of time.

3.   Leave is granted to the applicant to issue a judicial review application against the Board’s Decision.

4.   The applicant shall within 14 days file and issue an originating summons, which copy together with all the relevant documents shall be served on the Board as respondent and the Director as an interested party.

Observations for the Applicant:

Introduction

1.  By a “Notice of application for leave to apply for judicial review” in the prescribed Form 86 filed on 20 May 2025, the applicant applied for leave to apply for judicial review (“Leave Application”).  The intended judicial review was against the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) dated 28 June 2018 (“Board’s Decision”) dismissing the applicant's appeal against the decision of the Director of Immigration (“Director”) dated 14 October 2016 (“Director’s Decision”) rejecting the applicant's non-refoulement claim on all applicable grounds[1].  The Board’s Decision can be viewed at the following hyperlink: -

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2025/HCAL001171_2025_files/the_Board's_Decision.pdf

2.  In the Form 86, the applicant named the Registrar of the High Court as the proposed respondent and did not name any interested party.  As the Board should have been the proper respondent and the Director the interested party, the Form 86 shall be accordingly amended on the court’s own motion.

3.  The basis of the applicant’s claim was that, if refouled to Pakistan, he would be harmed or killed by a security officer and his subordinates after he reported to the police of the killing of his brother-in-law.  He also feared arrest by the police for a false charge filed by the Brothers.  The Board’s reasoning and findings were set out in detail in the Board’s Decision and it is not necessary for me to repeat them. Unless otherwise specified, I shall also adopt the Board’s abbreviations and descriptions stated in the Board’s Decision.

4.  At the applicant’s request for a hearing of the Leave Application, this court scheduled a hearing on 19 March 2026.  The applicant attended the hearing in person.  After having heard from him, this court informed him that the decision would be reserved, and be sent to his updated address.

Discussion

5.  The Leave Application operates as a “filtering” process and there is no requirement or expectation to give elaborate reasons for my decision.[2]  It is sufficient to state my observations after considering the Board’s Decision and the applicant’s materials adduced.

6.  In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly[3], and further to make full and frank disclosure of all material facts to be verified by an affidavit.  The Form 86 contained no such grounds.  In his supporting affirmation, the applicant attached to the Board’s Decision which he exhibited a one-page hand-written ground.  However, it was simply a repeat of his fear of refoulement.

7.  At the hearing, this court asked the applicant whether he had any grounds he wished to submit in support of the Leave Application.  The applicant told the court that last year after he had told the Immigration Department informed that he wanted to go home. However, he was immediately detained in March 2025.  While in detention, he got sick.  He is currently receiving treatment in Hong Kong for his stomach and back problems. He still had problems in Pakistan.  He still wanted to go back home.  However, he was worried that he might be detained again by the Immigration Department.

8.  As the Courts have repeatedly stated, a finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality.[4]  In the present case, the applicant was absent from the hearing before the Board. After a notice was sent to the applicant pursuant to s.15 of Schedule 1A (“Sch 1A”) of the Immigration Ordinance, the Board received no response from the application.  The Board therefore decided to determine the applicant’s appeal in his absence.  The Board took the view that in the absence of the applicant’s evidence, it was unable to determine whether there was a real risk or there were substantial grounds for believing that he would suffer the harm claimed were he refouled.  It therefore dismissed the applicant’s appeal.  These are findings of fact, which the court in a judicial review will not interfere with, subject to there being any public law errors

Board failed to assess merits of the applicant’s claims

9.  Bearing in mind the enhanced standard that should be adopted in scrutinizing the Board’s Decision, this court finds that the Board appears to have failed to observe a high standard of fairness in dismissing the applicant’s claims without considering the merits.

10.  Under s.15(3) of Sch 1A, the Board was statutorily empowered to determine the applicant’s appeal by making a decision under s 23 (1) of Sch 1A by either confirming or reversing the Director’s Decision.  In the present case, the Board had only set out the applicant’s claims contained in the documents, and stated the relevant law without determining the merits of the claims on paper.  The Board has therefore arguably erred in dismissing the applicant’s appeal in his absence, and the Board’s Decision is therefore arguably unreasonable and irrational and is tainted with procedural unfairness.

Whether to extend time for the late application

11.  Pursuant to O 53 r 4(1) of the Rules of the High Court, an application to apply for judicial review shall be made promptly and in any event within 3 months from the date when the Board’s Decision was delivered.  The applicant was late for about 7 years, which is extremely lengthy.

12.  In explaining for his delay, the applicant stated that he did not know the procedure of applying for judicial review.  The Immigration officers did not tell him that he was required to do so.  It was only during his detention at the Immigration detention center that he was informed by the inmates there of the procedure. 

13.  Ignorance is generally not a reasonable excuse for the delay especially for such a substantial period of delay.  However, before considering how this court should exercise its discretion, it ought also to consider merits.  Since I have in the above determined that the applicant’s Leave Application is reasonably arguable, the exercise of my discretion should therefore be guided by merits.  In H v Director of Immigration[5] , the Court of Final Appeal held at [39] that the aspect of delay is intrinsically bound up with whether leave to apply for judicial review should be granted, and the merits of the substantive application are relevant to whether there is good reason for extending time to apply.

14.  Thus a decision as to whether to extend time to apply for leave for judicial review, is inextricably tied to whether to grant leave and the merits of the intended judicial review.

15.  For late applications by non-refoulement claimants for leave to apply for judicial review the Board’s decisions, the court should give weight to the merits in deciding whether to extend time.  In Re Siti Naisah[6], the applicants were an Indonesian mother and her Hong Kong-born daughter.  The mother’s application to apply for leave to file the judicial review against a Board’s decision was late for more than 8 months.  The Court of Appeal allowed the appeal of the minor daughter even though it rejected the mother’s explanation for the delay.  In granting leave to the minor daughter, the Court of Appeal stated at [46] :

“In conclusion, we are of the view that it is reasonably arguable that the Judge should have extended the time for the 2^nd applicant to apply for judicial review, and the 2^nd applicant's intended appeal against the Judge's refusal to give leave to apply for judicial review enjoys reasonable prospect of success.”

Having regarding to the merits that I have found in the Leave Application and the above cited judgments, and the requirement of a high standard of fairness, I should exercise my discretion to extend time to the applicant to file the Leave Application out of time.

16.  In the premises, and for all the given reasons, I am of the view that the applicants’ Leave Application is reasonably arguable on those grounds stated above, thus meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

17.  Accordingly, I grant leave to the applicants to apply for judicial review of the Board’s decision, and direct that they shall within 14 days file and issue an originating summons, which copy together with all the relevant documents shall be served on the Board as respondent and the Director as an interested party.

Orders

18.  The Form 86 be amended on the court’s own motion.

19.  There shall be an extension of time for the applicant to file the application for leave to apply for judicial review out of time.

20.  Leave is granted to the applicant to issue a judicial review application against the Board’s Decision.

21.  The applicant shall within 14 days file and issue an originating summons, which copy together with all the relevant documents shall be served on the Board as respondent and the Director as an interested party.

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1