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

CAMP 72 /2025, [2026] HKCA 568

On appeal from [2023] HKCFI 383

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 72 OF 2025

(ON AN INTENDED APPEAL FROM HCAL NO 695 OF 2019)

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J U D G M E N T

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Hon Kwan VP (giving the Judgment of the Court):

Background

1.  On 28 February 2023, Deputy High Court Judge K W Lung refused to grant extension of time for the applicant to apply for leave to bring judicial review against the decision of the Torture Claims Appeal Board (“the Board”)  concerning his non-refoulement claim and dismissed the leave application[1].

2.  On 1 November 2023, the applicant filed a summons to seek extension of time to appeal against that decision at the Court of First Instance.  The summons was dismissed by the judge on 5 February 2024[2]. The applicant filed a renewed application for extension of time to appeal with the Court of Appeal on 9 April 2025.

3.  The applicant is a national of India.  He last entered Hong Kong illegally in March 2007 and was arrested by the police.  He lodged a torture claim on 7 December 2007 which was rejected on 14 October 2011. His petition to the Chief Executive against the said decision was dismissed.  He lodged a non-refoulement claim on 22 October 2013.  His claim was made on the basis that, if refouled, he would be harmed or killed by the Communist Party of India (Marxist)  (“CPM”)  because of his involvement in the conflict in 2006 between members of CPM and members of the Indian National Congress.

The decisions of the Director and the Board

4.  By a Notice of Decision dated 13 January 2017, the Director of Immigration (“the Director”)  rejected the applicant’s claim on all applicable grounds (other than torture risk[3] as the refusal of his torture claim would not be reviewed under the Unified Screening Mechanism)  including BOR 2 risk[4], BOR 3 risk[5] and persecution risk[6].

5.  The applicant appealed against the Director’s decision to the Board out of time.  He did not attend the hearing before the Board scheduled on 10 November 2017.  The Board decided to deal with the appeal on paper.

6.  The Board found that the applicant’s alleged risk of harm is unsubstantiated as the CPM was no longer the influential party in Kolkata or in West Bengal.  The Board further found that state protection would be available to the applicant in India.  It was held that the applicant’s claims are not made out on any of the applicable grounds and the appeal was dismissed on 28 June 2018.

The intended judicial review

7.  On 12 March 2019, the applicant filed a Form 86 and an affirmation in HCAL 695/2019 to seek leave to bring judicial review against the Board’s decision out of time.  He did not put forward any grounds for his intended challenge.

The judge’s decision 

8.  The judge dealt with the application on paper as the applicant did not request for an oral hearing.  The judge held that the applicant has raised no valid reason to challenge the Board’s decision and there is no realistic prospect of success in his proposed judicial review.  Thus, the judge refused to grant extension of time for the applicant to apply for leave to bring judicial review and dismissed the leave application on 28 February 2023.

Grounds of appeal

9.  The applicant attached his grounds of appeal to his supporting affirmation which may be summarised as follows:

(1)  His case was determined unfairly;

(2)  He was deprived of his basic right to be informed of his legal rights and no legal assistance was provided to him;

(3)  He did not receive the letter from court;

(4)  The court reached its decision on paper without an oral hearing;

(5)  The Board failed to conduct specific assessment regarding the applicant’s circumstances and failed to consider the Country of Origin information;

(6)  The Board failed to understand the law and failed to focus on relevant matters;

(7)  The judge did not give the applicant opportunity to explain.  The court only doubted the credibility of the applicant but never had doubt regarding the exploration of merits of the claim by the Board;

(8)  The decision in refusing leave to bring judicial review was Wednesbury unreasonable as the applicant might have a hard time in gathering evidence to support his claim and the court was supposed to consider this factor while he was unrepresented.

10.  The applicant further submitted that he would get all the supporting documents and proofs upon his release from the prison.  He also drew the court’s attention to his diabetes. 

Analysis and disposition

11.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will take into account: (1)  the length of delay; (2)  the reasons for the delay; (3)  the prospect of the intended appeal; and (4)  the prejudice to the respondent if an extension of time were granted.

12.  Pursuant to Order 53, rule 3(4)  of the Rules of the High Court, Cap 4A, the applicant may appeal to the Court of Appeal against the judge’s order refusing leave within 14 days after such refusal.  The order was made on 28 February 2023 and the applicant was late by more than 6 months when he took out the summons at the court below on 1 November 2023 (exclusive of the court’s summer vacation in August).  The delay is substantial.

13.  The applicant explained that he did not receive the letter from court.  In fact, on 28 February 2023, the judge’s decision was sent by post to the applicant’s address as stated in his supporting affirmation filed together with his Form 86.  It is noted that the applicant stated a different address in his application made to the court below on 1 November 2023. However, he has never filed any notice of change of address for service to inform the court of his change of address.  It is the duty of a litigant to give the court an address to which correspondence or notice can come to his attention in a timely manner.  The consequence of any delay or failure occasioned by the ineffectiveness of such an address would fall on the shoulder of the litigant (Re Hasmi Rizwan Imran [2018] HKCA 439, at §15).  Under the circumstances of this case, the applicant’s explanation for the delay is not justifiable.

14.  As the delay is inexcusable, the applicant must show a real prospect of success on the merits to obtain an extension of time to appeal (Secretary for Justice v Hong Kong & Yaumati Ferry Co Ltd [2001] 1 HKC 125).

15.  The general principles regarding an appeal in a non-refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

16.  The applicant did not raise his grounds concerning the Board’s decision in his application made to the court below.  In any event, the Board’s decision clearly shows that the Board has given its analysis on each applicable ground and has taken into account the applicant’s circumstances as well as the relevant Country of Origin information.  The applicant failed to provide any evidence to refute the Board’s findings.

17.  As for the ground relating to the lack of legal representation, the Court of Appeal has repeatedly stated that an applicant of non-refoulement claim does not have an absolute right to free legal representation at all stages of the proceedings (Re Paswan Shibu Lal [2018] HKCA 249 at §21).  The applicant already had the benefit of legal representation in presenting his case to the Director.

18.  Furthermore, when his claim was lodged in 2013, he was represented by the Duty Lawyer in the process before the Director and he was not detained when he filed his applications with the court below.  Under these circumstances, there is no justification for him to indicate at this late stage he would get supporting documents and proofs upon his release from the prison or seek to be excused for failing to submit supporting evidence previously.  He also failed to show how the alleged further evidence might assist his case.

19.  As for the lack of oral hearing, the judge was entitled to determine the leave application without a hearing pursuant to Order 53 rule 3(3)  of the Rules of the High Court (Cap 4A), as the applicant did not request for a hearing in his notice of application.

20.  The applicant also failed to show how his condition of diabetes is relevant to this application.

21.  The rest of his grounds are just bare assertions without sufficient particulars or evidence in support.

22.  For the above reasons, there is no prospect of success in the intended appeal.  Therefore, we refuse to grant extension of time to appeal against the judge’s decision of 28 February 2023 and dismiss the summons filed on 9 April 2025.