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

HCAL 430/2020

[2026] HKCFI 1161

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 430 OF 2020

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BETWEEN

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D E C I S I O N

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Introduction

1.  On 28 May 2025, by the prescribed Form Call-1 [2025] HKCFI 2147, (“Decision”), this court granted leave to the applicant to apply for judicial review against the decision of the Putative Respondent dated 8 March 2029 without dealing with the applicant’s late filing of his Form 86. This decision is to supplement the Decision. Unless otherwise stated, this court will adopt the same nomenclature as the Decision.

Whether to extend time for the late application

2.  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 8 months.

3.  A delay of 8 months is lengthy. However, the applicant did not provide any written reason to explain for the delay. Since he was absent from the hearing, the court was also unable to ascertain from him the reason for the delay. In the circumstances, the key factor that I need to consider is the question of merits. Since I have 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[1], 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.

4.  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.

5.  For late applications by non-refoulement claimants for leave to apply for judicial review a Board’s decisions, the court should give weight to the merits when deciding whether to extend time. In Re Siti Naisah[2], 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.”

6.  Having regarding to the merits that I have determined in the Decision 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.

Order

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