RE MOHAMMED ASLAM

CACV 192/2025, [2025] HKCA 914

On Appeal From [2025] HKCFI 1413

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 192 OF 2025

(ON APPEAL FROM HCAL NO. 3770 OF 2019)

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J U D G M E N T

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Hon Cheung JA (giving the Judgment of the Court)  :

1)  The appeal

1.  This is an appeal by the applicant against the judgment of Deputy High Court Judge Philips Wong of 7 April 2025 by which he refused to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board (‘the Board’)  dated 12 December 2019.

2)  Background

2.  The applicant is a national of India.  He last entered Hong Kong in May 2006 with a passport in the name of Mohammed Asam as a visitor.  He was required by the Immigration Department to attend the relevant offices for the processing of his application for extension of stay, where he failed to attend and had overstayed in Hong Kong.  In February 2008, the applicant was arrested for overstaying.  He was found to have previously visited Hong Kong under a different identity.  He was charged with using false travel document and making false representation to an Immigration Assistant.  He made a torture claim on 6 March 2008[1]. 

3.  The basis of the applicant’s claim is that he would be harmed or killed by members of the Congress Party (‘CP’)  in India if he returns[2].

4.  The background facts have been summarized in the Director’s Decision of 29 September 2014.

3)  The Director’s Decisions

5.  The Director of Immigration (‘the Director’)  decided against the applicant’s non-refoulement claim on 29 September 2014.  The decision covered Bill of Rights Article 3 (torture/inhuman treatment)  risk, as well as other statutory and convention rights against torture and persecution[3] (‘the Director’s Decision’).

6.  The Director decided against the Applicant’s right to life claim on 1 December 2016 (‘the Director’s Further Decision’).  The Director’s Further Decision covered Article 2 (right to life)  of the Bill of Rights[4] (‘BOR 2’).

4)  The Board’s Decisions

7.  The applicant appealed against the Director’s Decision and the Director’s Further Decision out of time[5]. The Board dismissed the applicant’s appeals by two decisions both dated 12 December 2019 without a hearing[6].  The Board held in its First Decision against the Director’s Decision (‘the Board’s First Decision’) :

‘ 18. No Grounds of Appeal/Petition was given by the Petitioner in Section 2 of the Notice of Appeal. Following the 3^rd stage referred to in Begum, I evaluated all the circumstances in this case and arrived at the conclusion that it is fair and just to refuse the Appellant’s application.

19.  There were no other matters known to me or revealed by the factual basis of the Appellant’s claim which might amount to special circumstances and which might make it unjust not to allow the late filing of the Notice of Appeal.

20.  Accordingly, I refuse the Appellant’s application for late filing of the Notice of Appeal.’

8.  In respect of the appeal against the Director’s Further Decision (‘the Board’s Second Decision’), the Board held :

‘ 18. No Grounds of Appeal/Petition was given by the Petitioner in Section 2 of the Notice of Appeal. The Director in the Notice of Further Decision had reviewed his claim and found that the evidence in his claim did not engage BOR 2 risk, which applied to death sentences and genocide, and the Director was satisfied that he had not established a personal and real risk of being arbitrarily deprived of his life in violation of BOR 2 upon his return to India. Following the 3^rd stage referred to in Begum, I evaluated all the circumstances in this case and arrived at the conclusion that it is fair and just to refuse the Appellant’s application.

19.  There were no other matters known to me or revealed by the factual basis of the Appellant’s claim which might amount to special circumstances and which might make it unjust not to allow the late filing of the Notice of Appeal.

20.  Accordingly, I refuse the Petitioner’s application for late filing of the Notice of Appeal.’

5)  Decision of the Judge

9.  The applicant did not provide any specific grounds for his judicial review application[7].

10.  The Judge was cognizant that the relevant provisions at the time of the Board’s two decisions (late 2019)  were that when the Board was to deal with late filing of notice of appeal applications, it was required to deal with the merits of the applicant’s case, despite the fact that the same relevant provisions have since 1 August 2021 been repealed and that the Board no longer needs to deal with merits as of 1 August 2021[8].  The Judge referred to the 3-stage approach in Begum and held that the Board had applied the 3-stage approach including the merits of the application.

‘ (3)  The third stage is to evaluate all the circumstances of the case, so as to enable the court to deal justly with the application. In considering all the circumstances of the case, the decision maker also takes into account (a)  the need for litigation to be conducted efficiently and at proportionate cost, and (b)  the need to enforce compliance with rules, practice and directions and court orders.’

‘ 15. From what the Board had stated in paragraphs 18 and 19 of the Board’s Decision, I am satisfied that the Board had duly considered all the circumstances of the case, including the merits thereof. In particular, given the nature of the Director’s Decision, and that no grounds was provided in the NOA, it is clear that the Board was of the view that the appeal was unlikely to succeed in any event.’

6)  Grounds of appeal

11.  The applicant in the notice of appeal stated the following :

‘ And further take notice that the grounds of this appeal are that the Plaintiff will face hardship if he is to return back to his home country and that the Torture Claims Appeal Board has significantly relied on the source of news which is not officially recognized, or it is simply hearsay. They have also relied on some cases which are outdated considering the dramatic changes. The lack of credible source of information has resulted in them making groundless speculations.’

12.  In the applicant’s written submissions, the applicant stated the following in summary :

(1)  It is the applicant’s fundamental right not to be subjected to torture;

(2)  The Decision has a significant effect on the applicant’s torture claim;

(3)  High standards of fairness is required for determining torture claims;

(4)  Appropriate standard of fairness depends on an examination of all aspects relating to the decision in question;

(5)  The applicant’s life and limb are in jeopardy and high standard of fairness must be demanded;

(6)  The Court should not usurp the function of the Secretary;

(7)  The Court should determine non-refoulement cases with anxious scrutiny and rigorous examination;

(8)  The applicant should be given every reasonable opportunity to establish his/her claim;

(9)  The Adjudicator did not scrutinize the Director of Immigration;

(10)  The Board did not consider country of origin information; and

(11)  The decision maker is under duty to act fairly which is a constitutional duty.

7)  Our view

13.  This Court in Qasim Ali [2019] HKCA 430 held that the Board needs to consider the merits of the case in an out of time appeal.  In that case, the Board used identical words like the ones used in the present case by the Board when it assessed the 3^rd stage requirement :

‘ 20. Following the 3^rd stage referred to in Begum, I evaluated all the circumstances in this case and arrived at the conclusion that it is fair and just to refuse the Appellant’s application.

21.  There were no other matters known to me or revealed by the factual basis of the Appellant’s claim which might amount to special circumstances and which might make it unjust not to allow the late filing of the Notice of Appeal.’ (emphasis added)

14.  This Court held :

‘ 23. Further, as the last of the 3-stage enquiry alluded to in The Secretary of State for the Home Department v Begum, on which the Board had directed itself at [16] of the Board’s Decision, even where there is a serious or significant breach for which no good reason is given, the decision maker should move to evaluate all the circumstances of the case that he knows of.

24.  In identifying what circumstances are relevant, it is imperative to bear in mind that the discretion to allow the late filing of a notice of appeal is exercisable when it would be “unjust” not to do so by reason of “special circumstances”: see s 37ZT(3)  of the Ordinance.

25.  It is in this connection that we cannot agree with the Board or the Judge that merits need not or should not be considered (see Board’s Decision at [21] and Call-1 Form at [37]).  In our opinion, it would be unjust not to allow the late filing of a notice of appeal where the appeal is meritorious.  Indeed, nothing would be more unjust.

26.  The Board should have, under s 37ZT(2)(b)  of the Ordinance, taken account of the merits of the appeal (albeit on paper without a hearing)  regardless of the procedural breaches or the lack of explanation therefor.  See Re Khan Kamal Ahmed, CACV 563/2018, [2019] HKCA 377, 2 April 2019, [16]-[20].

27.  For these reasons, we are of the view that the intended application for judicial review is reasonably arguable, meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007)  10 HKCFAR 676.’

15.  Consistent with the approach in Qasim Ali, we are unable to agree with the Judge that the Board had properly considered the merits of the applicant’s case.

16.  In the Board’s First Decision, despite the words of the Board that it had evaluated all the circumstances, or that there were no other matters known which might make it unjust not to allow for late filing, those circumstances or matters were not spelt out or discussed in the decision.  The Board’s focus was on why it did not accept the applicant’s explanations on how the applicant was seriously late.

17.  In respect of the Board’s Second Decision, despite the expansion of [18] which referred to parts of the Director’s Further Decision and its rulings, the highest that this can be taken is that it was a reference to a previous Director’s decision.  This cannot be a substitute for what should be a consideration of the case on the merits on paper.

18.  For the reasons as stated above, we will allow the appeal and the applicant is granted leave to apply for judicial review of the Board’s Decisions.  

19.  In accordance with Order 53, rule 5, he should file and serve an originating summons within 14 days from the date of this judgment.  The originating summons should set out the ground that the Board had failed to consider the substance of his non - refoulement claim, which is a relevant matter of fact within the Board’s knowledge within the meaning of section 37ZT(2)(b)  of the Immigration Ordinance.

20.  There will be no order as to costs.