SAEED UR REHMAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 513/2026

[2026] HKCFI 2480

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 513 of 2026

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following：

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

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 3 March 2025 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board/ Non-refoulement Claims Petition Office (the “Board”) dated 29 December 2025 (the “Decision”) refusing his application for late filing of Notice of Appeal (“NOA”) against the decision of the Director of Immigration (the “Director”) in his Notice of Decision 4 June 2025 (the “Notice”). 

2.  The Applicant is a Pakistani national, now aged 38.  He entered Hong Kong in 2007 under a dependent visa to join his then wife.  His limit of stay was last extended to 15 April 2016.  On 8 April 2016, he submitted an application for verification of eligibility for a permanent identity card (“VEPIC”) which was refused on 7 September 2016.  On 27 December 2016, he was arrested by the police for attempted burglary.  He was subsequently convicted and sentenced to three years’ and three months’ imprisonment.  Upon his discharge from prison on 2 March 2019, he was referred to the Immigration Department.  A removal order was issued against him on 16 April 2019. 

3.  After having unsuccessfully resisted the removal order and after his VEPIC application had been repeatedly rejected, he lodged a non-refoulement claim by written significations dated 21 January 2025 and 4 February 2025.  His claim was rejected by the Director’s Notice dated 4 June 2025.  On 9 December 2025, he filed a Notice of Appeal (“NOA”) against the Director’s Notice out of time.  On 29 December 2025, the Board issued the Decision refusing his application for late filing.  The Applicant now seeks leave to apply for judicial review of this Decision.

4.  By a letter dated 13 March 2026 , the Department of Justice requested priority be accorded to this leave application.  A hearing on 15 April 2026 was scheduled.  By his letter dated 18 March 2026, the Applicant requested the Court not to accord priority to his leave application, but to defer it so as to allow time for his legal aid application to be processed.  At the time, the Court has not received any memorandum from the Legal Aid Department about his legal aid application.    

5.  Shortly before the hearing, the Court received a letter dated 8 April 2026 from the Applicant referring to the letter dated 13 March 2026 from the Department of Justice and his earlier letter dated 18 March 2026.  He submitted that he will be killed if he is returned to Pakistan and asked the Court to grant him leave to apply for judicial review.

Application for adjournment

6.  As mentioned in paragraph 4, the Applicant had applied by letter for an adjournment to allow him time for his legal aid application to be processed.  At the hearing, he was asked about the progress in his legal aid application.  He said he had applied for legal aid last month and was told to provide all supporting documents.  He had given the documents to the welfare officer of Tai Tam Gap Correctional Institution where he is currently detained for forwarding them to the Legal Aid Department.  That led the Court to the belief that he had not yet formally made the legal aid application. 

7.  All documents necessary for determination of this leave application were before the Court.  The factual and legal issues raised by this application are simple and straight forward.  Having read the papers, including the Decision and the Applicant’s written submission annexed to his Form 86, the Court formed a provisional view that there is no merit in this leave application and that the Applicant would not be prejudiced as a result of lack of legal representation.  Hence, at the hearing the Court refused the Applicant’s application for adjournment and proceeded to hear his leave application on the basis that he had not formally made any legal aid application.

8.  However, after the hearing, the Court came to notice that the legal aid memorandum had in fact been received.  However, for the same reasons as stated in the preceding paragraph, the Court considered it appropriate to proceed with the determination of this leave application notwithstanding the provisions of Section 15 and Regulation 7A of the Legal Aid Ordinance.     

The relevant statutory provisions applicable to late filing of the NOA

9.  Under the non-refoulement protection regime, a claimant aggrieved by the decision of the Director may appeal that decision by filing a NOA with the Board within 14 days after the Notice of Decision was served on him: Section 37ZS(1) of the Immigration Ordinance (the “Ordinance”) and Paragraph 8.1 of the Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme (the “Petition Guide”). Failing that, he may also make a late filing, pursuant to Section 37ZT(1) of the Ordinance, by giving a statement of the reasons for his failure accompanied by all available supporting evidence.  For that purpose, Section 5 of the NOA form is designed as an application for late filing for the claimant to state the reasons for his failure when filing the NOA. 

10.  Section 37 ZT(2) of the Ordinance and Paragraph 9.2 of the Petition Guide mandate the Board to decide, as a preliminary decision without a hearing, whether to allow the late filing.  The subsection also requires the Board to only take account of the statement of reasons stated in Section 5 of the NOA and the supporting evidence relied on. 

11.  Under Section 37ZT(3) of the Ordinance and Paragraph 9.3 of the Petition Guide, the Board may allow late filing if the claimant has provided sufficient evidence in writing to satisfy the Board that he had exercised all due diligence to file the NOA within time but failed because of circumstances beyond his control.  The burden of proof is on the Applicant and the threshold is very high.  He has to prove both the exercise of all due diligence and circumstances beyond his control.

The legal principles applicable to judicial review

12.  The function 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.  In an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality:  see Nupur Mst v Director of Immigration[1].

Grounds for judicial review

13.  After having been explained the above legal principle, the Applicant referred to his Written Submission annexed to his supporting affirmation and his two letters dated 18 March 2026 and 8 April 2026.  He said all the grounds are contained in those documents.  He had listed the following seven grounds in page 9 to 14 of his Written Submission:

(1)   the Decision was unreasonable and unfair; the right to life is protected under Article 28 of the Basic Law and Article 2 of the Bill of Right;

(2)   the right to life is protected by criminal law and he must be protected from extra-judicial killing that he may face, if returned to Pakistan;

(3)   the Board acted procedurally improperly or unfairly when assessing whether to accept or not to accept his explanation and required him to respond questions that he was not in the position to respond;

(4)   the Director failed to take such arguments into account or give such argument enough weight;

(5)   the judge erred in not applying the principle of procedural unfairness to the Director’s decision when the Director or the Board were required to give reasons for justifying their decisions;

(6)   the judge erred in not applying the principle of irrationality to the Director’s and the Board’s decisions, he will face hardship if returned to his home country, and the Board relied on news which is not officially recognized or is simply hearsay; and

(7)   his life would be in danger if returned to Pakistan.

He then quoted some authorities under the title of ‘Grounds to show cause Before the Acting Registrar’.  As there were no proceedings before the Acting Registrar, this part of his ‘Grounds’ is wholly irrelevant and will not be considered.

14.  The issue before this Court is the propriety of the Board’s Decision refusing the Applicant’s late filing of his NOA.  Except for Grounds (1) and (3) which are directed at the Board’s Decision in respect of which relief is sought, all the other grounds are irrelevant.  The Court will revert to these two grounds later.

15.  Ground (2) is a statement of general principle of law, which has no bearing on the Decision.  Ground (4) is directed at the Director’s decision in the Notice.  Not until the Applicant has overcome his problem about late filing, the Director’s decision in the Notice need not be considered.  Grounds (5) and (6) are directed at the judge.  But hitherto, no judge had been involved in the Director’s Notice or the Board’s Decision. Under Ground (7), the Applicant claimed that his life would be in danger if he is returned to Pakistan.  That was a material issue before the Director when making his decision in the Notice, but it is not an issue which the Board need to consider when deciding the issue of his late filing of the NOA.  Hence, all these grounds are irrelevant.

16.  In his Written Submission, the Applicant made the following two points:

(a)   the Board’s Decision was Wednesbury unreasonable or irrational in that it was made without any hearing or without listening to testimony of the Applicant; and

(b)   the Board failed to give any or any sufficient reason for dismissing his appeal without any hearing;

These two points support Grounds (1) and (3).  In his oral submission before this Court, the Applicant submits that he is entitled to explain the reason why he was late and that he was prevented from doing so by the Board making the Decision without holding an oral hearing and hearing his testimony.  He reiterated that he had never received the Notice and repeated his explanation for the delay as stated in the NOA, ie his letter box was open as he asserted in Section 5 of his NOA or broken as he asserted before this Court and he surmised that somebody had taken the Decision.  This Court takes no issue whether the letter box was open or broken and assumes it to be the result of a mere of imprecise choice of words.  In essence, the Applicant has two complaints.  First, the Board acted procedurally unfairly by making a decision without holding an oral hearing and hearing his testimony.  Second, the Board was Wednesbury unreasonable in not accepting his explanation that he never received the Notice. 

17.  Subsections (1) and (2) of Section 37ZT give the complete answer to the Applicant’s first complaint.  Section 37ZS(1) sets out how an appellant claimant can exercise that right to explain his late filing by giving a statement of the reasons for his failure accompanied by all available supporting evidence.  The NOA form was conveniently designed to facilitate that purpose.  The Applicant has actually given a statement in Section 5 of the NOA to that effect.  He has presented his explanation and said what he wanted to say.  His explanation was he never received the Notice and he offered a possible explanation for the non-receipt, ie the letter box was open or broken and he surmised that somebody had taken the Notice away.  That is also what he told this Court at the hearing.  Indeed, the Applicant had presented his explanation fully to the Board, albeit not orally but in writing.  What he did not have was the chance to present that explanation in the form of an oral submission and by way of testimony before the Board.

18.  However, Section 37 ZT(2) of the Ordinance and Paragraph 9.2 of the Petition Guide mandate the Board to decide whether to allow the late filing as a preliminary decision without a hearing.  The subsection also requires the Board to only take account of the statement of reasons stated in Section 5 of the NOA and the supporting evidence relied on.  By law, the Applicant has no right to an oral hearing.  Not only that, he has to put forward the entirety of his explanation in the statement in Section 5 of the NOA.  This is to ensure that nothing is left out and that the Board has the totality of his explanation to ensure that it is procedurally fair not to hold an oral hearing.  The audi alteram partem rule of natural justice is well observed in Section 37ZT.  

19.  The Applicant’s second complaint is a direct challenge of the Board’s finding of fact that his explanation is not a reasonable or credible one.  The Notice complained of was not issued by the Board but by the Director.  The Board did not have a copy of the Notice and the Applicant did not annex a copy to the NOA.  Thus, on 9 December 2025 the Board asked the Applicant for a copy of the Notice and made inquiries from the Immigration Department.  The Board was informed by the Immigration Department that on 10 December 2025 the Applicant had asked the Immigration Department for a copy of the Notice.  More importantly, the Immigration Department also informed the Board that a copy of the Notice had been sent to the Duty Lawyer Service (the “DLS”) representing the Applicant on 4 June 2025 and the DLS acknowledged receipt of the Notice on the same day.  It is the standard practice for the Notice to be sent to the DLS representing the claimants and for their assigned duty lawyers to explain the Notice to them. The Applicant’s explanation that he never received the Notice through the course of mail and his surmise that the Notice had been taken away by someone could not stand.  Furthermore, his explanation did not even begin to explain how he came to know that an adverse decision had been made against him in the Notice and that he had to appeal against that to the Board. That is an important piece of information which the Board needs to satisfy itself that the Applicant meets the requirements of seeking 37Z(3).

20.  Under Section 37Z(3) the Board may allow the late filing if the person filing the Notice provides sufficient evidence in writing to satisfy the Board that he had exercised all due diligence to file the notice within time or that he failed to file the notice within time because of circumstances beyond his control.  The threshold is very high.  In its six page Decision, the Board quoted the relevant provisions under the Immigration Ordinance, its decision and the reason for its decision.  On the explanation given by the Applicant and on the totality of the evidence before the Board and in the light of the statutory provisions, it is open to the Board to find that the explanation was far below that threshold. 

Conclusion

21.  Having rigorously examined the Decision with anxious scrutiny, this Court is satisfied that the Board had correctly directed itself on the law and key legal principles applicable to the late filing of NOA.  It complied with the relevant provisions in the Immigration Ordinance applicable to late filing of NOA.  The Decision is essentially one of finding of fact which is solely within the realm of the Board to make, which the Court on a judicial review will not intervene save for error of law, procedural unfairness and irrationality.  The Board observed a very high standard of fairness.  The Court could detect no errors of law in the Decision.  The Decision does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  The Decision is utterly without fault.  The Applicant has no arguable grounds for judicial review.  There is no realistic prospect of success in the proposed judicial review. 

22.  Accordingly, leave to apply for judicial review is refused.

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