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

HCAL 1356/2020

[2025] HKCFI 3586

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1356 of 2020

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

1.  Form 86 be amended on the court’s own motion as follows:-

a.  the name of the Putative Respondent be amended to “Torture Claims Appeal Board/Non-refoulement Claims Petition Office”.

2.  Leave granted to the applicant to apply for judicial review in respect of the Torture Claims Appeal Board/ Non-refoulement Claims Petition Office’s decision dated 19 June 2020.

Observations for the Applicant:

Introduction

1.  By Form 86 filed on 30 June 2020 (the “Form 86”), the Applicant sought leave to apply for judicial review (the “Leave Application”) against the decision of the Torture Claims Appeal Board / Non‑refoulement Claims Petition Office (the “Board”) dated 19 June 2020 (the “Board’s Decision”).

2.  To properly name the parties, I make an order to amend the Form 86 accordingly on my own motion.

3.  An oral hearing was requested by the Applicant. It took place before me on 25 July 2025 (the “Hearing”) and the Applicant attended in person.

Background

4.  The Applicant’s background, the basis and history of his claim and the arguments he advanced had been set out in detail in the Board’s Decision, and it is not necessary for me to repeat the same here. The hyperlink to the Board’s Decision is included below[1] for reference. In short, he feared for his safety if he were to return to Bangladesh because he was involved in a land dispute with an individual named Abul Hasam who was a leader of the Awami League (“AL”), a political party.

Discussion

5.  The applicable legal principles relating to this type of applications are well established. The judicial review is not a further avenue of appeal. Though in non‑refoulement cases, the Court will adopt a high standard of fairness to review the decision of the Board with anxious scrutiny due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. 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 are errors of law, procedural unfairness or irrationality in the decision of the Board, see: Nupur Mst v Director of Immigration [2018] HKCA 524, at §14.

6.  It is trite law that, an applicant, even if unrepresented, is required to properly identify the grounds of judicial review in the Form 86, and to fully and frankly disclose all material facts and potential legal answers, see: Ho Loy & Another v Director of Environmental Protection (HCAL 21/2015, 22 December 2016) per Chow J. (as he was then) at §142.

7.  In the Form 86, the Applicant did not provide any grounds in support of the Leave Application. In his supporting affirmation, he only expressed disagreement with the Board’s Decision.

8.  Notwithstanding the shortcomings in the Applicant’s Form 86, I have reviewed the Board’s Decision with anxious scrutiny in the interest of maintaining a high standard of fairness for the Applicant.

9.  The Board’s Decision is summarised as follows:-

(1)  The Applicant was approximately 4 days late in lodging his Notice of Appeal (“NOA”) against the decision of the Director dated 2 April 2020 rejecting the Applicant’s non-refoulement claim (§§1, 10).

(2)  In accordance with sections 37ZA(1)(b) and 37ZT(3) of the Immigration Ordinance (Cap 115) (the “Ordinance”) in force at the time, the Board held that Applicant was required to establish special circumstances which would make it unjust to refuse to allow a late filing (§12).

(3)  The Board (at §17) referred to the 3-stage test in Secretary of State for the Home Department v. Begum (2016) EWCA Civ 122:-

“(a) The first stage is to identify and assess the seriousness or significance of the failure to comply with the rules. If the breach is serious or significant, the decision maker then considers the second and third stages.

(b) The second stage is to consider why the failure occurred. If there is a serious or significant breach and no good reason was given for the breach, the decision maker moves to the third stage.

(c) The third stage is to evaluate all the circumstance of the case, so as to enable the court to deal with justly with application. In considering all the circumstance of the case, the decision maker [sic][2].”

(4)  At §18, the Board referred to Re Karamjit Singh [2018] HKCA 460 where the Court of Appeal held that, in the case involving short delays, the Board should generally have regard to the merits of the case as disclosed by the available materials, rather than simply dismissing the application for lateness.

(5)  The Board then went on to find that the Applicant did not provide a sufficient reason for the delay because the Board did not accept that the Applicant could not find anyone at all to assist him to submit the appeal despite his limited knowledge of English. Even though the Board recognized that the length of the delay was relatively short, it nevertheless found the delay was significant (§§11, 27-29).

(6)  The Board then went on to consider all circumstances of the case, including the need for efficient litigation, proportionate costs and enforcement of relevant rules and procedures. On the merits, the Board noted that there were profoundly serious weaknesses in the Applicant’s claim which undermined the Applicant’s case of a real risk of serious harm. The Board also found that there appeared to be viable and reasonable internal relocation alternatives available to the Applicant having regard to his ability. The Board concluded that the claim was unmeritorious (§§30-40).

(7)  The Board reached the conclusion that the required special circumstances had not been established and disallowed the late filing (§§41-42)

10.  I am of the view that there is a reasonably arguable case with realistic prospects of success that the Board has erred in refusing to allow the late filing of the NOA.

11.  First, it appears that the Board may have conflated stage 1 and stage 2 of the Begum test. In concluding that the delay of 4 days was significant, the Board seemed to have taken into account the quality of the Applicant’s reason for the delay. It is clear from Begum at §14(i) that the reasons for the delay only become relevant at stage 2 of the inquiry after the Board is satisfied that the delay is serious or significant:-

“The first stage is to identify and assess the seriousness or significance of the failure to comply with the rules. The focus should be on whether the breach has been serious or significant. If a judge concludes that a breach is not serious or significant, then relief will usually be granted and it will usually be unnecessary to spend much time on the second or third stages; but if the judge decides that the breach is serious or significant, then the second or third stages assume greater importance” (emphasis added).

12.  Second, in any event, it appears to me that a delay of 4 days can hardly be described as significant. I note that in Qasim Ali [2019] HKCA 430, the Court of Appeal held that there was a reasonably arguable case that the Board’s finding of a delay of 8-days as serious and significant was irrational. It held at §22(1) that “[a] delay of 8 days cannot, on any view be regarded as serious or significant.” A fortiori, it must at least be reasonably arguable that the Board’s finding on this aspect to be irrational.

13.  Given the Board had also made a finding that the appeal was unmeritorious, I have also considered whether I should dismiss the Leave Application notwithstanding the potential errors in the Board’s Decision as identified above on the basis that the Board has already found that the appeal was unmeritorious.

14.  The relevant test is one of inevitability, i.e. an error is immaterial if the decision would inevitably have been the same, see: Hong Kong Golf Club v Director of Environmental Protection [2023] HKCFI 1946 at §§24-26. In the circumstances, it is reasonably arguable that the Board’s decision may have been different, given that:-

(1)  The Board’s finding on the merits appears to be an expression of its preliminary view based on the materials available to it.

(2)  Under s. 37ZT(2) of the Ordinance, the Board was compelled to decide the question of whether to allow the late filing as a preliminary decision without a hearing. Hence, it is at least reasonably arguable that the outcome of the substantive appeal before the Board may have been different had the late filing been allowed and that an oral hearing was held where the Applicant was able to give live evidence.

Conclusion

15.  In the premises, I make an order that the Form 86 be amended as described above and leave is granted on the following grounds, namely that:-

(1)  the Board has erred in law by failing to properly apply the 3-stage in Secretary of State for the Home Department v. Begum (2016) EWCA Civ 122; and

(2)  the Board’s finding that, the 4-day delay was significant, was Wednesbury unreasonable.

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