MOHAMMAD SHAFIQ v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 706/2020

[2025] HKCFI 4079

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 706 of 2020

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;

1.  The Applicant’s Form 86 be amended to name the Board as putative respondent, the DI as putative interested party and the Board’s Decision dated 1 February 2017 as the decision in respect of which relief is sought;

2.  Extension of time for the application for leave to apply for judicial review be refused; and

3.  The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.  By a Form 86 filed on 20 April 2020 (“Form 86”), the Applicant sought leave for judicial review of a “judgment” dated 20 December 2017. However, no copy of such “judgment” has been provided; neither has the secretariat of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (“the Board”) provided a decision of the Board on the Applicant’s non-refoulement claim made on such a date.

2.  In the oral hearing of this application, the Court explained to the Applicant that, according to information provided by that secretariat, the Board assessed the Applicant’s torture risk, persecution risk and risk of violation of right under Article 3 of the Hong Kong Bill of Rights on 1 February 2017 (“the Board’s Decision”) after 3 days of hearing in years 2015 and 2016. After the Board’s Decision was made, the Director of Immigration (“DI”) invited the Applicant to provide additional facts for consideration under Article 2 of the Hong Kong Bill of Rights. However, by a letter dated 24 April 2017, the Applicant’s then representative the Duty Lawyer Service (“DLS”) informed the DI that the Applicant wished to withdraw his non-refoulement claim. There was therefore no further assessment under Article 2, as mentioned in the DI’s letter to the Applicant via the DLS dated 26 April 2017.

3.  The Court enquired with the Applicant, in these circumstances, what decision is the subject of the present application, to which the Applicant said it was the Board’s Decision on 1 February 2017. A copy of the Board’s Decision can be viewed by the following hyperlink[1]. On my own motion, I amended the Form 86 as per paragraph 1 of my order above.

4.  The Board’s Decision and the filing of the Form 86 were more than three years apart. The Applicant was extremely late in seeking to commence this application. He needs an extension of time for this application to go further. In considering whether to extend the period within which the application shall be made, the Court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration (Re Thomas Lai [2014] 6 HKC 1; and AW v Director of Immigration & Anor [2016] 2 HKC 393).

5.  In the oral hearing, the Applicant told this Court he did not file the Form 86 earlier because he was ignorant of legal procedures. Moreover, his father was in critical health condition. This caused him to instruct the DLS to write to the DI to withdraw his non-refoulement claim during the Article 2 process in April 2017, as he wished to fly back to Pakistan (his home country) at that time.

6.  Such explanation does not justify the delay in filing the Form 86. In fact, the latter part of the explanation suggests that the Applicant had decided not to seek non-refoulement protection in Hong Kong in April 2017, on an informed basis, after the Board’s Decision was made, yet he made an about-turn 3 years later to ask the Court for permission to review the Board’s Decision. This cannot be permitted. In my view, this is akin to an abuse of the Court’s process.

7.  The Applicant has not set out any ground as to why the Board’s Decision was erroneous in law, procedurally unfair or irrational. The Applicant just tried to explain the situation of Pakistan, especially at his local area in Kashmir, had become even worse now than the time of his previous assessment. This Court can only review the legality of the Board’s Decision and does not serve as an avenue of further appeal. In the absence of any argument bearing a public law nature against the Board’s Decision, there is no prospect that the Applicant would be granted any relief. There is no merit in this application. If there is a significant change of circumstances since a previous non-refoulement claim was finally determined or withdrawn, and such change, together with the materials previously submitted, would give the Applicant a realistic prospect of success of obtaining non-refoulement protection, the Applicant can at most explore the mechanism under section 37ZO of the Immigration Ordinance with the DI.

8.  Extension of time is refused, and the application for leave to apply for judicial review 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