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

HCAL 2795/2019

[2025] HKCFI 3820

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2795 of 2019

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

Following:

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

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

2.   An extension of time be granted to the applicant to file the application for leave to apply for judicial review out of time. 

3.  Leave is granted to the applicant to apply for judicial review of the Board’s Decision, and direct that he 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 the respondent and the Director as the 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 23 September 2019, 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 20 July 2015 (“Board’s Decision”).  The Leave Application was filed after the expiry of the 3 months’ time limit.  In the Board’s Decision, the Board rejected the late filing of the applicant's appeal against a decision of the Director of Immigration (“Director”) dated 21 August 2014 (“Director’s Decision”) rejecting the applicant's non-refoulement claim on all applicable grounds other than BOR 2 risk[1].  Pursuant to the applicant’s request for a hearing of the Leave Application, this court scheduled a hearing on 3 June 2025.  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. 

3.  In Form 86, the applicant referred to the Director’s Decision as the subject decision of the intended challenge.  At the hearing, the applicant clarified that he had in fact wanted to review the Board’s Decision.  Further, the applicant named the Director as the respondent.  Since the Board should have been the respondent and the Director the interested party, the Form 86 will be amended accordingly on the court’s own motion. 

Background

4.  The background as taken from the Director’s Decision and the Board’s Decision can be briefly stated as follows. 

5.  The applicant is a national of Bangladesh. He was arrested by police in Hong Kong on 27 February 2014 for illegal remaining and was referred to the Immigration Department on 28 February 2014.  During enquiries, he stated that he departed Bangladesh for mainland China on 1 March 2012 and was arranged to enter Hong Kong from Shenzhen on foot, without permission. 

6.  The applicant lodged a non-refoulement claim on 28 April 2014.  The claim was based on a fear that if refouled, he would be harmed or killed by members of the Awami League (“AL”) because he refused to join their political party. 

7.  The applicant claimed that since 2009, AL members had been asking him to join the AL party.  Initially they invited him in a friendly manner, However problems began in 2010 after the AL party came into power.  One night in mid-2010, he and a friend were violently assaulted by a group of 8 to 10 people who punched and kicked the applicant and his friend for around 20 to 30 minutes. 

8.  One evening around mid-2011, while the applicant was on the street near his home, he encountered 4 or 5 AL members, who took him to a room next to a rice mill, asked him to join the AL and work for them.  The applicant was acquainted with two of those AL members, named Nizam and Yasin.  When he refused to join the AL, the entire group kicked and punched him, and hit his head against the wall for about 10 to 15 minutes.  He developed a fever after he was hit on the head.  After this assault, the applicant’s mother complained to Nizam and Yasin’s elder brothers. 

9.  Subsequently, the applicant was called to attend Nizam’s home with the applicant’s father to have a discussion.  Yasin and his brother were also present.  At the meeting, Nizam’s elder brother Jashin asked Nizam and Yasin not to assault the applicant again, and told the applicant that if they bothered him again he could complain to Jashin instead of going to the police.  However, Nizam and Yasin continued to ask him to join the AL and work for them whenever they saw him on the street.  Thus, the applicant did not feel safe, and decided to leave the country. 

10.  In the Director’s Decision, the Director rejected the applicant’s non-refoulement claim on all applicable grounds for protection except BOR 2 risk. 

11.  The applicant sought to appeal against the Director’s Decision.  The Board found that the applicant’s notice of appeal received on 22 April 2015 was late by 7 and 1/2 months.  According to s. 37ZT of the Immigration Ordinance[2] governing a late filing of the notice of appeal at the prevailing time of the appeal, the applicant was then statutorily required to include with his notice of appeal “a statement of the reasons to file the notice” on time and documentary evidence relied on in support of the reasons.  Pursuant to s. 37ZT (2), the Board was required, based on the information available to it, to decide the preliminary issue as to whether to allow the applicant’s late filing of the notice of appeal without a hearing. 

12.  In his reasons for late filing, the applicant indicated that he had no idea of his right to appeal and that nobody informed him of such right.  The Board did not accept this explanation, and concluded that there was an absence of any cogent reasons for failing to file the notice of appeal on time. 

13.  At [9] of the Board’s Decision, the Board stated that there were no other relevant matters of fact within its knowledge amounting to special circumstances which would make it unjust not to allow the late filing of the notice of appeal.  The Board thus rejected the late filing of the notice of appeal.  The Board did so without mentioning or considering the merits of the applicant’s claim. 

Applicable legal principles governing

(a)  Late filing of the Leave Application

Since the present Leave Application was filed out of time, this court,  when considering if an extension should be granted, will have regard to:

(i)    The length of the delay;

(ii)   The reason for the delay;

(iii)  The prospect of success of the intended appeal; and

(iv)  the prejudice to the respondent if an extension of time were granted.: see Re MK HCMP 2609/2016, 10 January 2017; Chu On Fong Winter v The Appeal Panel (Housing) HCMP 982/2017, 20 July 2017; Islam Raja Rais v Director of Immigration HCMP 881/2017, 26 June 2017; Re Gurang Min Bahadur [2018] HKCA 226; Re Saqlain Muhammad [2018] HKCA 346; and Nguyen Thi Hong Thuy [2024] HKCA 1172. 

(b)  Late filing of notice of appeal to the Board under s. 37ZT

Notwithstanding the amendments on 1 August 2021 to s. 37ZT (2) amended by the Immigration (Amendment) Ordinance, the case law interpreting them will still apply in this case.  In Re Khan Kamal Ahmed[3] and Re Qasim Ali[4], the Court of Appeal held that under s. 37ZT (2)(b) and (3), it was incumbent upon the Board, “in exercise of its discretion to extend time for appeal, to take the merits of the applicant’s case into account regardless of the procedural breaches of the lack of explanation therefor”: see Re Khan Kamal Ahmed at[20].  

(c)  Judicial Review

As the Courts have repeatedly stated, determination of the merits of a non‑refoulement claim is essentially a matter for the Director and the Board, who are the primary decision-makers in the evaluation of the evidence based on the materials available to them.  A court will not usurp their primary decision-making role in a judicial review, which is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh in the absence of any legal error.  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: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524. 

Discussion and conclusion

14.  The applicant’s Form 86 appears to raise the following grounds:

(a)  the Director [or, when understood in context, the Board] refused to accept the applicant’s non-refoulement claim before reaching a decision on whether the claim is established or not;

(b)  the Director or the Board did not comply with high standards of fairness. 

Whether to extend the time for the late filing of the Leave Application

15.  At the hearing, the court inquired from the applicant the reason for the late filing of the Leave Application.  The applicant stated that he had no one who could help him after he had received the Board’s Decision until he found a Bangladeshi friend to help him prepare the Leave Application. 

16.  While the delay in filing the Leave Application is lengthy – 4 years – it should be borne in mind that the Court of Appeal’s judgments in Re Khan Kamal Ahmed and Re Qasim Ali were not available until 2 and 8 April 2019 respectively, approximately 5 months before the applicant filed this application.  Since these judgments are in favour of his case, the effective delay counting from 8 April 2019 is only 5 months.  More importantly, there is a good prospect of success in the intended judicial review.  Applying a high standard of fairness, this court should allow the applicant to benefit from Re Khan Kamal Ahmed and Re Qasim Ali, and grant an extension of time to allow the late filing of the Leave Application. 

Late filing of the notice of appeal to the Board

17.  In the present case, the Board rejected the applicant’s late notice of appeal without considering the merits of the appeal.  According to the Court of Appeal decisions referred to above, the “any other relevant matters of fact within the knowledge of the Board” under s. 37ZT (2) requires the Board to “take the merits of the applicant’s case into account” apart from the explanation for the delay :See Re Khan Kamal Ahmed [17]-[20].  In the present case, the Board stopped at the stage of reason for delay. 

18.  As stated in the authorities above, the role of the court in an application for judicial review is not to re-assess the non-refoulement claim but to scrutinize the Board’s decision for errors of law, procedural unfairness or irrationality.  The discretion to extend time for appeal is vested in the Board.  By having failed to examine the merits, the Board has failed to take into account relevant facts or circumstances, thus it is reasonably arguable that the Board’s Decision was erroneous in law, unreasonable and procedurally unfair, and did not meet the requisite high standards of fairness. 

Conclusion

19.  In the premises, and for all the given reasons, I am of the view that the applicant’s Leave Application is reasonably arguable, thus meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.  There is a realistic prospect of success in the intended judicial review.  

20.  Accordingly, I grant leave to the applicant to apply for judicial review of the Board’s Decision, and direct that he 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 the respondent and the Director as the interested party. 

Orders

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

22.  An Extension of time be granted to the applicant to file the application for leave to apply for judicial review out of time. 

23.  Leave is granted to the applicant to apply for judicial review of the Board’s Decision, and direct that he 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 the respondent and the Director as the 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

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