SHAKEEL MUHAMMAD v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 710/2020

[2025] HKCFI 4103

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 710 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 by naming the Board as the putative respondent and the DI as the putative interested party;

2.  Extension of time to file the Form 86 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 applied for leave to commence judicial review proceedings against a decision of the Torture Claims Appeal Board (/Non-Refoulement Claims Petition Office) (“the Board”) dated 24 October 2019 (“the Board’s Decision”).

2.  In essence, the Board’s Decision was a refusal to allow the late filing of the Applicant’s notice of appeal/petition against the Director of Immigration (“DI”)’s (i) first decision dated 17 February 2015 assessing the Applicant’s risks of torture, persecution and having his right under Article 3 of the Hong Kong Bill of Rights (“BOR3”) violated (“DI’s 1^st Decision”); and (ii) further decision dated 18 November 2016 assessing the Applicant’s risk of having his right under Article 2 of the Hong Kong Bill of Rights (“BOR2”) violated (“DI’s 2^nd Decision”). The notice of appeal/petition was received by the Board’s secretariat on 5 November 2018. Specifically on the DI’s 2^nd Decision, the DI mentioned that the Applicant had not provided any materials or facts in addition to those put forward in his original claim for the purpose of a BOR2 assessment.

3.  The Applicant named both the Board and the DI as both putative respondents and putative interested parties. On my own motion, I amended the Form 86 by naming the Board as the only putative respondent and the DI as the only putative interested party.

4.  As matters stood in November 2018 when the Applicant tried to file the notice of appeal/petition, the procedure relevant to the filing of appeal/petition was governed by sections 37ZT(1)-(4) of the Immigration Ordinance (Cap. 115) (“IO”) (on torture risk) and the prevailing procedural guide governing handling of petition (on other applicable risks). Despite the technical difference, the substantive provisions of the IO and the guide were the same. The period for appeal/petition was 14 days from the DI’s decisions. Late filing of appeal/petition might however be allowed by the Board if its Member/Adjudicator was satisfied that by reason of special circumstances, it would be unjust not to allow the late filing of the notice.

5.  In the Board’s Decision, the power to accept late filing of appeal/petition was recognized. According to section 37ZT(2) of the IO (and its counterpart in the guide), the Board must decide, as a preliminary decision without a hearing, whether the late filing of the notice of appeal/petition was allowed. In doing so, the Board might only take account of (a) the statement of reasons stated in the application for late filing and any accompanying documentary evidence relied on in support of those reasons and (b) any other relevant matters of fact within its knowledge. According to section 37ZT(3) of the IO (and its counterpart in the guide), if the Board was satisfied that by reason of special circumstances, it would be unjust not to allow the late filing of the notice of appeal/petition, it might allow the late filing of the notice.

6.  In the Applicant’s statement of reasons for late filing submitted to the Board, he only reiterated he could not go back to his home country Pakistan because he had serious life threat; he further said he relied on the story/facts given to the immigration officer. He did not provide any explanation on the significant delay from the DI’s 1^st and 2^nd Decisions in 2015/2016 to the attempt to file appeal/petition in November 2018; neither did he explain why the DI’s 1^st and 2^nd Decisions, including their factual assessments, were incorrect.

7.  Noting that the Applicant had been detained in Castle Peak Bay Immigration Centre, the Board wrote to the Applicant via the Centre on 14 February 2019 to require the Applicant to provide any special circumstances for late filing, but no response was received. A further letter was sent to an outside address stated in the notice of appeal/petition, but still no response was received.

8.  In the absence of any special circumstances, the Board plainly could not have been satisfied that there was a basis to extend time for filing the notice of appeal/petition. The Applicant did not even try to set out why the assessments in DI’s 1^st and 2^nd Decisions were incorrect.

9.  The filing of the Form 86 was itself also late. The Rules of the High Court required a Form 86 to be filed promptly and in any event not later than 3 months from the date of the administrative decision challenged. The filing of the Form 86 was over 5 months after the Board’s Decision. There is no explanation for this second delay. In any event, as the Applicant had failed to address the Board why he should have been given extension of time to file notice of appeal/petition in the first place, there was no merit in his purported challenge against the Board’s Decision.

10.  No extension of time is granted, and this application for leave to apply for judicial review falls to be 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