ZAHID v. TORTURE CLAIMS APPEAL BOARD

HCAL 2446/2020

[2025] HKCFI 4849

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2446 OF 2020

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

Following:

1.  Extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 13 December 2019 be refused; and

2.  Leave to apply for Judicial Review be refused.

Observations for the Applicant:

1.  The Applicant is a 37-year-old national of Pakistan who arrived in Hong Kong on 18 August 2014 and subsequently raised a non-refoulement claim for protection by way of a written signification dated 23 August 2015 to the Immigration Department on the basis that if he returned to Pakistan he would be harmed or killed by his cousin over their land dispute in his home district. He was subsequently released on recognizance pending the determination of his claim.

2.  On 24 October 2017 the Applicant attended a briefing session for making non‑refoulement claim conducted by the Immigration Department, during which he was given a blank Non-refoulement Claim Form (“NCF”) with written instructions to complete and return it to the Department within 28 days from the date of a written request for him to do so to be served on him in due course, for which he indicated in writing of his understanding and agreement, and that he was also on the same day referred to the Duty Lawyer Service (“DLS”) for legal representation for his claim, which obviously to include assistance for him to complete and return the all-important NCF for his claim when so required by the Director.

3.  Accordingly by written requests dated 14 November 2017 and 30 November 2017, the Director of Immigration (“Director”) in pursuance of Section 37Y(2) of the Immigration Ordinance, Cap 115 required the Applicant to return his completed NCF on or before 12 December 2017.

4.  However, on 29 November 2017 the DLS informed the Director of no further instructions to act for the Applicant, and in the absence of any NCF returned by him, the Director by a Notice of Decision dated 14 December 2017 sent to his then reported address, the Applicant’s non-refoulement claim was treated as withdrawn under Section 37ZG(1) of the Ordinance.

5.  Some 9 months later on 11 September 2018 the Applicant in writing to the Director requested to re-open his non-refoulement claim on the basis that he was still in danger if refouled to Pakistan.

6.  By a letter dated 14 September 2018 the Director required the Applicant to provide detailed reasons why he had not been able to return the completed NCF as required due to circumstances beyond his control and with any documentary proof within 14 days on or before 28 September 2018.

7.  After receiving no such information from the Applicant, the Director by a Notice of Decision dated 31 October 2018 refused to re-open his claim on the basis that he had failed to provide sufficient evidence in writing to satisfy an immigration officer that he had not been able to return his completed NCF as required due to circumstances beyond his control.

8.  On 12 November 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision in which he stated as follows:

“I Muhammad Zahid am not satisfied with Immigration’s decision. Because I have valid reasons that my maternal grandfather wrote in his will upon his death will be given to my mother. Sometimes later my 2 maternal uncles tried to grab the properties by force. My maternal cousin also attacked on me to kill me. In which I escaped. I can also produce evidence upon the time. I would like to lodge appeal against the immigration’s decision. Because my life is still in danger in Pakistan. I hope that my application will be accepted.”

9.  For his appeal the Applicant attended an oral hearing on 25 November 2019 before the Board during which he gave evidence and answered questions raised of his appeal by the Adjudicator for the Board as to his failure to return a completed NCF to the Director within the time required or at all. On 13 December 2019 his appeal was dismissed by the Board which also confirmed the Director’s decision.

10.  In its decision[1] the Board found that the Applicant had been properly explained and was fully aware of the requirement for him to complete and return his NCF within the deadline required by the Director so as to commence the assessment and determination of his non-refoulement claim, that he was on the same day also referred to the DLS for legal representation for his claim, that proper and sufficient notices and reminders had been given to both the Applicant and his lawyer from DLS of the deadline of 12 December 2017 for him to return his completed NCF to the Director for the commencement of the assessment of his claim and for which a screening interview had in fact already been scheduled before an immigration officer on 28 December 2017, that no NCF was returned to the Director by 12 December 2017 and for which the Director by a Notice of Decision dated 14 December 2017 informed the Applicant that his non-refoulement claim had been treated as withdrawn, that some 9 months later when he requested to re-open his claim that he failed to provide any reason why he was unable to return his completed NCF due to circumstances beyond his control as statutorily required and despite being specifically reminded by the Director to do so, that for which the Director was entitled to refuse his request to re-open his claim, that his explanations given in his Notice of Appeal as noted above were not acceptable or tenable, nor was he able to give any reason at the hearing of his appeal before the Board for his failure to return a completed NCF as required despite every opportunity given to him that the Board concluded that the Applicant had failed to comply with Section 37ZG(3) of the Ordinance to provide any reason or evidence that he had not been able to return a completed NCF as required under Section 37Y(2) of the Ordinance due to circumstances beyond his control which might justify allowing him to re-open his claim.

11.  On 14 December 2020 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form or his supporting affirmation of the same date, nor did he request any oral hearing for his application.

12.  By then the Applicant was also out of time with his application, as Order 53 rule 4(1) of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the day when grounds for the application first arose unless the Court considers that there is good reason to extend the period within which the application shall be made.

13.  As the last day of the three-month period for him to file his Form 86 fell on 13 March 2020, the Applicant was therefore some 9 months late with his application, and in considering whether to extend time, the Court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393.

14.  In the Applicant’s case, a delay of 9 months must be considered as extremely substantial and inordinate, for which he did not provide any explanation or reasons in his Form or affirmation, and as the record shows that the decision was sent on the same day of 13 December 2019 to his then reported address which is the same as stated in his present application without being returned through undelivered post, I am unable to see any good or valid reason for his such serious delay.

15.  As for the merits, if any, of his intended application, as noted above that the Applicant has also failed to put forth any proper ground for his intended challenge, nor did he request any oral hearing for his application. As such, and in the absence of any error of law or irrationality or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any merits in his intended application either.

16.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: 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.

17.  In the Applicant’s case, the Board rejected his appeal for the thorough and detailed analysis and reasoning set out in its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his failure to return a completed NCF to the Director within the period as required, and for that matter even up to the time of his hearing before the Board that the Applicant did not appear to have any completed NCF ready for his claim despite clearly well knowing by then that the return of that all‑important document was the most essential first step to commence his non-refoulement claim but which he was simply oblivious without any explanation. As such, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

18.  In the premises, and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s request to re-open his claim.

19.  For all these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reason for his such serious delay, I refuse to extend time and accordingly dismiss his leave application.

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