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

HCAL 3595/2019

[2025] HKCFI 2900

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3595 of 2019

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

Following:

	consideration of documents only;          or
	consideration of documents and oral submissions by the Applicant in open court;

(1)  Form 86 be amended, naming only the Torture Claims Appeal Board / Non-refoulement Claims Petition Office as the Putative Respondent and the Director of Immigration as the Putative Interested Party.

(2)  The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

Introduction

1.  By Form 86 filed on 3 December 2019, the Applicant applies for leave to apply for judicial review (“the Leave Application”) of the decision of (i) the Director of Immigration (“the Director”) dated 21 April 2015 (“the Director’s Decision”); and (ii) the decision of the Torture Claims Appeal Board/ Non-refoulement Claims Petition Office (“the Board”) dated 29 November 2019 (“the Board’s Decision”), refusing to grant him extension of time to file the appeal.

2.  On my own motion, I have amended Form 86, correctly naming only the Board as the proposed respondent and adding the Director as the proposed interested party.

Discussion

3.  The Applicant’s intended application for judicial review, challenging the Director’s Decision and the Board’s Decision, is not reasonably arguable with any realistic prospects of success (see Peter Po Fun Chan v Winnie Cheung & Another (2007) 10 HKCFAR 676).

4.  First of all, as held in Re Moshin Ali [2018] HKCA 549, the decision of the Director is no longer subject to judicial review once an appeal to the Board has been pursued and the Director’s decision has been superseded by the Board’s decision. The Applicant had previously lodged a claim with the Director for non-refoulement on the grounds of Torture Risk, BOR3 Risk, and Persecution Risk. The claim was dismissed on 21 April 2015 by the Director (i.e. the Director’s Decision). The appeal filed on 30 April 2015 was dismissed on 1 December 2016, after an oral hearing. It is therefore not open to the Applicant to challenge the Director’s Decision by way of judicial review. The relevant procedural history has been set out comprehensively in the Board’s Decision, with the hyperlink provided below[1].

5.  With respect to the Board’s Decision, it arose as follows:

(1)  On 20 January 2017, the Director, on his own initiative, decided to canvass the issue of BOR2 Risk. The Applicant was invited to submit, within 14 days, any further materials for consideration. On 2 February 2017, the Applicant wrote to the Director stating that he had documents to submit, and the deadline for submission was extended to 17 February 2017. However, no material was provided by the Applicant in the end.

(2)  On 23 February 2017, the Director determined that the further claim regarding BOR2 Risk was not established. The statutory time limit for an appeal to be filed to the Board was 14 days from the issue of the determination.

(3)  On 27 April 2017 the Applicant appealed to the Board against the Director’s dismissal of his BOR2 claim out of time.

6.  For the reasons set out in the Board’s Decision, the Board refused to extend time for the Applicant to file the appeal. The Director’s decision dated 23 February 2017 was thereby confirmed. The Applicant has not identified any valid grounds for judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21/2015 (judgment dated 22 December 2016) at §142), nor provided any materials disclosing any basis to challenge the legality, rationality or fairness of the process below.

7.  In view of the seriousness of the issues involved, I have reminded myself to apply an enhanced standard as required by law (see Nupur Mst v Director of Immigration [2018] HKCA 524 at §14).

8.  I am not persuaded that the Court should, in the above circumstances, usurp the role of the Board as the primary decision maker (see Re Zunariyah (supra); Re Qadir Sher [2018] HKCA 160; Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Lakhwinder Singh [2018] HKCA 246; Re Masoom Parvez [2018] HKCA 163; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst (supra), etc.).

Conclusion

9.  I accordingly make an order that Form 86 be amended as described above and the Leave Application be dismissed.

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