SHEIKH REHMAN ZULFIQAR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 3335/2019

[2025] HKCFI 3634

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3335 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 Applicant being absent in open court;

Leave to apply for Judicial Review be refused.

Observation for the Applicant:

The application

1.  The applicant is a national of Pakistan, an illegal immigrant. He lodged a   non-refoulement claim on 17 August 2014 with the Director of Immigration (“the Director”). He claimed that he was threatened and/or ill-treated by some men and that caused him to leave Pakistan.

2.  He withdrew his claim by way of a written notification dated 3 February 2016, in which he confirmed that he wanted to return to Pakistan since his problem was resolved and it was safe for him to return to Pakistan. By letter dated 11 February 2016, the Director accepted his withdrawal.

3.  By another written notification dated 9 September 2016, the applicant applied to the Director intending to re-open his claim, alleging that he was still in danger if he returned to Pakistan. He had provided no further evidence of any change of circumstances since he withdrew his claim.

4.  The Director had twice requested the applicant to provided further information and evidence in writing. The applicant did not reply to the Director’s request.

5.  By Notice of Decision dated 8 November 2016 (“the Director’s Decision”), the Director refused to re-open his claim. In the Director’s Decision, the applicant was advised to take out an appeal to the Board within 14 days from the date of the Director’s Decision if he was not satisfied with the Director’s Decision.

6.  The applicant filed his notice of appeal on 4 October 2018, which was late for more than 1 year and 11 months.

7.  The applicant’s explanation for his delay was:

“I could not get Immigration Letter by post on time because I received it so late and it was opened, may be someone else opened it mistakenly and after months ago I received on 23 October.”

8.  However, the Board found that there was a delay in the delivery of the Director’s Decision to the applicant. It found that the Director’s Decision was received by the applicant on 23 October 2017, which is almost one year before the applicant’s filing of the notice of appeal and the delay was inordinate and unreasonable.

9.  By the Board’s Decision dated 21 October 2019 (“the Board’s Decision”), the Board refused to extend time for the applicant to file his notice of appeal because the applicant had failed to provide any further evidence or change of circumstances in his request, or in the appeal. As such, the Board did not consider that the applicant’s claim or the appeal is meritorious. [11]

10.  By Form 86 filed on 7 November 2019, the applicant applied for leave to apply for judicial review of the Board’s Decision.

11.  In the affirmation in support of his application, the applicant did not raise any specific ground to challenge the Board’s Decision.

The issue in question – application of section 37ZT of the Ordinance

12.  The issue before this Court is whether the Board had correctly applied section 37ZT of the Immigration Ordinance, Cap.115, before it was amended in 2021 to this case:

13.  Section 37ZT before the amendment in 2021, provided inter alia:

“Late filing of notice of appeal

(1) If a notice of appeal is filed after the expiry of the 14-day period referred to in section 37ZS(1), it must include an application for late filing of the notice, which—

(a) must include a statement of the reasons for failing to file the notice within that period; and

(b) must be accompanied by all available evidence relied on in support of the reasons referred to in paragraph (a). (Amended 7 of 2021 s. 19)

(2) The Appeal Board must decide, as a preliminary decision without a hearing, whether the Board allows the late filing of the notice of appeal under subsection (3), and in doing so, the Board may take account of –

(a) the statement of reasons stated in the application for late filing of the notice of appeal and any accompanying documentary evidence relied on in support of those reasons; and

(b) any other relevant matters of fact within the knowledge of the Board.

(3)  If the Appeal Board is satisfied that by reason of special circumstances, it would be unjust not to allow the late filing of the notice of appeal, the Board may allow the late filing of the notice and must, by written notice, inform the person filing the notice of the Board’s decision….”

14.  The Court of Appeal in Re Khan Kamal Ahmed [2019] HKCA, Hon Yuen JA and Lisa Wong J. 2 April 2019 held that it is 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 or the lack of explanation therefor. This was decided before section 37ZT was amended in 2021.

Discussion & conclusion

15.  In this case, the Board had considered that the applicant had made his application to the Director for withdrawal of his claim, saying that his problem has been solved. His changed his evidence subsequently to say that his problem had not been solved, without giving any reason for changing his previous evidence, and applied for re-opening of his claim. The Director and/or the Board was entitled to demand information from him for his change of stance and requested him to provide it with further information under section 37ZE of the Ordinance.

“37ZE Withdrawal of torture claim by claimant

(1) A claimant may, before a torture claim is decided under section 37ZI, withdraw the claim by notifying an immigration officer in writing.

(2) Subject to section 37ZF(3), a torture claim that has been withdrawn under subsection (1) may be re-opened if the person who made the claim provides sufficient evidence in writing to satisfy an immigration officer that—

(a) since the withdrawal, there has been a change of circumstances that—

(i) could not reasonably have been foreseen by the person when the person gave the notification under subsection (1); and

(ii) when taken together with the material previously submitted for the claim, could increase the prospect of success of the claim; or

(b) by reason of special circumstances, it would be unjust not to  re-open the claim.”

16.  As this is the applicant’s request for re-opening his claim, which he had previously withdrawn, the merits of his claim has to be considered within the context of section 37ZE of the Ordinance. Since the applicant did not respond to its request, the Board therefore came to its finding that the claim had no merit in support of his application for re-opening of his claim. It had also considered that there were no special circumstances for the Board to exercise any statutory discretion to extend time for the applicant to file the notice of appeal. [12] See hyperlink https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003335_2019_files/the_Board's_Decision.pdf.

17.  The Board had also taken on board the applicant’s claim that he was threatened and/or ill-treated by some men and that caused him to leave Pakistan. Obviously, the Board rejected his claim as he refused to provide information on his case.

18.  In my view, the Board is correct to exercise its discretion in accordance with section 37ZT of the Ordinance and refused the applicant’s application to file his notice of appeal out of time. There is no reason for this Court to interfere with the Board’s Decision.

19.  For the reasons above, I am satisfied that there is no reasonable prospect of success in the applicant’s intended application for judicial review of the Board’s Decision.

20.  I dismiss the applicant’s 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