GAZI SADDAM v. TORTURE CLAIMS APPEAL BOARD

HCAL 2102/2020

[2025] HKCFI 6167

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2102 OF 2020

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

	consideration of the documents only; or
	consideration of the documents and oral submissions by the applicant in open court;

1.  On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board” and the decision in respect of which relief is sought be amended to “Torture Claims Appeal Board’s decision dated 8 October 2020”. 

2.  The applicant’s application for leave to apply for judicial review be dismissed.

Observations for the applicant:

The Leave Application

1.  By way of Form 86 dated and filed on 21 October 2020, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of two decisions, which the applicant described as follows:-

“The decision made on unknown date but notice on of 15 June 2017

the decision dated 8 October 2020

 Adjudicator, Torture Claims Appeal Board”

2.  The Torture Claims Appeal Board (“the Board”) made a decision dated 8 October 2020 (“the Board’s 2^nd Decision”) in respect of the applicant’s late filing of his Notice of Appeal/Petition (“NoAP”) against the Notice of Further Decision by the Director of Immigration (“the Director”) dated 15 June 2017 (“the Director’s 2^nd Decision”), which rejected his non-refoulement claim on the ground of BOR 2 Risk[1].

3.  It is clear that the first decision above-mentioned is the Director’s 2^nd Decision and the second decision is the Board’s 2^nd Decision.

4.  At the oral hearing before this court on 13 November 2025, the applicant confirmed that only the Board’s 2^nd Decision should be the subject matter of the Leave Application.

5.  The applicant filed his NoAP to the Board on 27 September 2017, which was 90 days late. The Board refused the applicant’s late filing of the NoAP in the Board’s 2^nd Decision.

6.  The applicant’s non-refoulement claim based on the grounds of Torture Risk[2], BOR 3 Risk[3] and Persecution Risk[4] had previously been rejected by the Director’s decision dated 10 September 2015 (“the Director’s 1^st Decision”). The Director’s 1^st Decision was confirmed by the Board by way of its decision dated 20 April 2017 (“the Board’s 1^st Decision”).

7.  The applicant subsequently applied for leave to apply for judicial review in respect of the Board’s 1^st Decision (in HCAL 311/2017). The leave application was dismissed by DHCJ Woodcock (as she then was) on 8 September 2017.

8.  Both the Board’s 1^st Decision and the Board’s 2^nd Decision can be viewed in the following hyperlinks:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL002102_2020_files/1st_Board's_Decision.pdf

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL002102_2020_files/2nd_Board's_Decision.pdf

Amendments

9.  In Form 86, the applicant named the Board and “Non-Refoulement Claims Petition Office” as the putative respondents, when only the Board should be the putative respondent.

10.  The Non-refoulement Claims Petition Office is just an office which provides administrative and secretariat support to the adjudicators of the Board and should not be named as a putative respondent at all.

11.  As aforesaid, the decision in respect of which relief is sought should be the Board’s 2^nd Decision.

12.  Thus, this court makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board” and the decision in respect of which relief is sought to “Torture Claims Appeal Board’s decision dated 8 October 2020”.

The applicant’s case

13.  It is not necessary for this court to repeat the details of the applicant’s case here as the same were set out in the Board’s 1^st Decision, which can be viewed in the hyperlink above.

14.  In any event, the Leave Application is only about the applicant’s challenge on the Board’s 2^nd Decision in refusing his application for late filing of the NoAP.

Oral hearing

15.  The applicant requested for an oral hearing of the Leave Application. His case was heard on 13 November 2025.

16.  At the hearing, the applicant confirmed that he would rely on the grounds mentioned in the document with the title “GROUNDS ON WHICH RELIEF IS SOUGHT” annexed to his Form 86. However, when this court asked the applicant to elaborate on the grounds, he did not do so. He only mentioned that his mother, who was his only family in Bangladesh, passed away 3 to 4 years after he was in Hong Kong. He therefore could not find any documents in support of his non-refoulement claim. He was trying to find other people in Bangladesh to help him to find the documents and he asked this court to give him time to do so.

17.  This court explained to him that it was not for this court to receive new evidence in relation to his non-refoulement claims (see Trinh Thuy Huyen v Torture Claims Appeal Board [2024] HKCA 1090).

18.  This court further asked the applicant to elaborate on what he had stated in his supporting affirmation dated 21 October 2020. Again, he failed to do so, but just repeated that his mother had passed away and he could not submit the documents.

Grounds for judicial review

19.  The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).

20.  The applicant stated in his supporting affirmation that it was dangerous for him to go back to his home country because Covid-19 infected people in Bangladesh and the patients were dying without being treated. He would go back to his country when the situation improved.

21.  Except for one assertion, which will be discussed later, all the grounds mentioned in the document with the title “GROUNDS ON WHICH RELIEF IS SOUGHT” annexed to the applicant’s Form 86 were irrelevant.

22.  The only relevant part of the document with the title “GROUNDS ON WHICH RELIEF IS SOUGHT” annexed to his Form 86 was what the applicant stated in paragraph 2 (a) thereof. The applicant challenged the Board’s finding in paragraph 13 of the Board’s 2^nd Decision by saying that the Board was wrong in finding that the NoAP was filed out of time by 90 days. The applicant believed that the post office could not send any letter at the material time.

23.  As such, the applicant seems to suggest that it was not his fault that the Director’s 2^nd Decision was received late.

Discussion

24.  First of all, if the applicant intends to submit new evidence to this court for consideration of his non-refoulement claim, it was not permissible in a judicial review.

25.  The applicant’s worry about the Covid-19 pandemic in Bangladesh was not mentioned in his non-refoulement claim either.

26.  As held in Trinh Thuy Huyen v Torture Claims Appeal Board, supra, the Board had no duty to make investigation into any matter without the applicant raising it and it should not be considered by this court at this stage.

27.  Further, as held in Nupur Mst v Director of Immigration [2018] HKCA 524, due to the difference in the role of the court in a judicial review and the role of the primary decision-makers, an applicant cannot rely on materials which have not been produced before the Board or the Director to contend that the latter erred in not taking those into account unless the decision-makers have a positive duty to elicit such materials on their own volition.

28.  Thus, the applicant cannot rely on any matters not presented to the Board for consideration to challenge the Board’s 2^nd Decision, and this court will not allow the applicant to submit any further supporting documents.

29.  As to the applicant’s assertion that the Board was wrong in concluding that his application was filed out of time for 90 days, the applicant did not raise the allegation that the delay might be due to the disruption of postal service. He only mentioned in Section 5 of the NoAP that he received the Director’s 2^nd Decision on 26 September 2017 because he had changed his residential address.

30.  The Board found the reasons given by the applicant in Section 5 of the NoAP did not provide a reasonable explanation for his failure to file the NoAP in a timely manner and did not cover the whole of the period of the delay. Moreover, the applicant did not give any further information relating to his claimed change of address, and he did not inform the Immigration Department of any change of address, as he was required to do under the terms of his recognizance.

31.  Clearly, the delay of the applicant’s receipt of the Director’s 2^nd Decision was at least partially due to his failure to inform the Board or the Director of his change of address.

32.  Section 37ZA(2) of the Immigration Ordinance stipulates as follows:-

“(2) A claimant must provide to the Director and (on an appeal) to the Appeal Board—

(a) the claimant’s residential address in Hong Kong; and

(b) the claimant’s correspondence address in Hong Kong (if different from the residential address),

and must notify the Director and (on an appeal) the Appeal Board in writing of any change in either of those addresses as soon as practicable after the change.

33.  Thus, the applicant had breached his duty to notify the Director and the Board in writing of any change in his address as soon as practicable after the change. He cannot blame the delay on the disruption of postal service when he was in breach of this duty. This cannot be a valid ground to challenge the Board’s 2^nd Decision.

34.  The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision and intervene by way of judicial review only for errors of law, procedural unfairness or irrationality (see Nupur Mst v Director of Immigration, supra).

35.  Thus, despite that the applicant did not advance any valid ground for the intended judicial review, this court will still scrutinize the Board’s 2^nd Decision for any errors of law, procedural unfairness or irrationality.

36.  The Board did consider the then provisions of section 37ZT(2) and (3) of the Immigration Ordinance, Cap 115, which required the Board to take account of: (a) the reasons stated in the application for late filing of the Notice and any documents relied on in support of those reasons; and (b) any other matters of fact within the knowledge of the Board. The Board may allow late filing of the Notice if it is satisfied that, by reason of special circumstances, it would be unjust not to allow the late filing of the Notice.

37.  This court notes that the Board did not refuse the applicant’s late filing of the NoAP simply because the applicant did not provide a reasonable explanation of the delay.

38.  The Board went on to consider the merits of the applicant’s case as set out in the Board’s 1^st Decision to see whether there might be any special circumstances by reason of which it would be unjust not to allow the late filing of the NoAP. As held in paragraphs 22 to 25 of the Board’s 2^nd Decision, the Board found that the factual basis of the applicant’s case did not disclose any such special circumstances, and hence it refused to allow the late filing of the NoAP.

39.  The Court of Appeal has held that “any other relevant matters of fact within the knowledge of the Board” under the then section 37ZT(2)(b) of the Immigration Ordinance required the Board to take account of the merits of the appeal (see Re Khan Kamal Ahmed [2019] HKCA 377, Re Qasim Ali [2019] HKCA 430 and Re Villarosa Rhea Limbaga [2024] HKCA 95).

40.  It is clear that the Board did consider the merits of the appeal and was entitled to conclude that there was no special circumstances to allow the late filing of the NoAP.

41.  Having rigorously examined the Board’s 2^nd Decision and the evidence with anxious scrutiny, this court could detect no errors of law, procedural unfairness or irrationality in the Board’s 2^nd Decision.

42.  For the sake of completeness, this court noticed that the adjudicator of the Board, Mr Ian Candy, signed the Board’s 2^nd Decision as “Adjudicator of Non-refoulement Claims Petition Office” instead of “Member of the Torture Claims Appeal Board”. This is not a correct description of his capacity.

43.  Mr Candy was a member of the Board and he was determining the applicant’s petition in his capacity as a member of the Board. The Non-refoulement Claims Petition Office is just an office providing administrative and secretariat support to him. He was not making the determination on behalf of the Non-refoulement Claims Petition Office, which does not have any power to determine the applicant’s petition at all.

44.  Under the USM, the Chief Executive has delegated his powers under Article 48(13) of the Basic Law to members of the Board to hear and determine petitions in relation to claims made on all applicable grounds other than Torture Risk (see paragraph 3.7 of the Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme). Thus, only the members of the Board have the powers to hear and determine the applicant’s petition.

45.  Nevertheless, the wrong description of his capacity does not nullify the Board’s 2^nd Decision, as Mr Candy was indeed a member of the Board and did have the power to determine the applicant’s petition. It is just not right to name himself as an adjudicator of the Non-refoulement Claims Petition Office.

46.  In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim has to be a reasonably arguable claim which enjoys realistic prospects of success. It is the view of this court that the applicant has failed to establish such a claim and hence leave must be refused.

Conclusion

47.  For reasons aforesaid, the Leave Application is dismissed.

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