MUNAWAR SHAHID v. TORTURE CLAIMS APPEAL BOARD/NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 89/2021

[2025] HKCFI 5445

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 89 of 2021

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following;

1.  Form 86 be amended as follows:- (1) the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (the “Board”) be named as the Putative Respondent; and (2) the Director of Immigration (the “Director”) be named as the Putative Interested Party.

2.  The application for leave to apply for judicial review in respect of the Board’s decision dated 21 January 2021 be granted.

3.  The Applicant shall issue the Originating Summons within 14 days from the date hereof in accordance with Order 53, rule 5 of the Rules of the High Court (Cap.4A).

Observations for the Applicant:

Introduction

1.  By Form 86 filed on 26 January 2021 (the “Form”), the Applicant applied for leave to apply for judicial review (the “Leave Application”) against (1) the decision of the Director dated 3 February 2017 (the “Director’s Decision”); and (2) the decision of the Board dated 21 January 2021 (the “Board’s Decision”).

2.  The Director’s Decision had already been superseded by the Board’s Decision.  The Director’s Decision is not susceptible to judicial review once appeal to the Board had been pursued (see Re: Moshsin Ali [2018] HKCA 549, at §§31-45).  Accordingly, in so far as the Applicant seeks leave to apply for judicial review in relation to the Director’s Decision, the application fails in limine and is hereby dismissed.

3.  In the Form, the Applicant named the Director and the adjudicator responsible for the Board’s Decision as the proposed respondents.  The Applicant did not name any interested parties.  As it is trite that the Board should be the proposed respondent whereas the Director should be the proposed interested party in an application of this sort, I make an order to amend the Form on the court’s own motion.

4.  The Applicant requested an oral hearing for the Leave Application.  The hearing took place on 13 October 2025 and the Applicant attended in person.  At the hearing, the Applicant submitted 2 further documents for the Court to consider.  He explained that the first document related to an incident where his uncle was killed.  He said he mentioned the incident to the Board before but he did not have the report at the time.  In respect of the second document, the Applicant said it related to an incident happened in 2023 (i.e. after the Board’s Decision) in which his enemy opened fire at his home in Pakistan. 

5.  There is no formal application to adduce the 2 documents as further evidence.  Equally there is no supporting affirmation to explain the nature and relevance of the documents.  I have considered the 2 documents and the limited explanation provided by the Applicant at the hearing.  I do not consider that the Court is a position to consider these documents.  First, the documents themselves lack sufficient particulars and context.  Without a proper affirmation explaining the context and relevance, the Court is not in a position to assess whether such documents are relevant to the Applicant’s claims the subject matter of the Board’s Decision or the Leave Application. Second, even in respect of the first document, contrary to what the Applicant said at the hearing, I am unable to see from the Board’s Decision and the Board’s earlier decision dated 23 March 2016 (the “Board’s Earlier Decision”) that this was previously mentioned to the Board.  The first document appears to be a postmortem report and I am unable to see its relevance to the Applicant’s claims without further explanation.

6.  In the premises, I refuse to admit these 2 documents as evidence. 

Background

7.  The Applicant’s background, the basis of his claim and the arguments he advanced had been set out in details in the Board’s Decision and in the Board’s Earlier Decision.  For the purpose of the present Leave Application, I do not consider it necessary to repeat the same here.  The hyperlinks to the Board’s Decision[1] and the Board’s Earlier Decision[2] are included below for reference.

Discussion

8.  The Applicant applied for leave for judicial review of the Board’s Decision in which the Board refused the Applicant’s late filing of the Notice of Appeal/Petition (the “NOA”).

9.  The applicable legal principles relating to application of this sort are well established.  The Court will not intervene by way of judicial review unless there are errors of law, procedural unfairness or irrationality in the decision of the Board.  (See Nupur Mst v Director of Immigration [2018] HKCA 524, at §14)

10.  In the Form, the Applicant did not provide any grounds in support of the Leave Application.  In the supporting Affirmation, the Applicant provided a number of grounds.  I have considered those grounds. I do not believe they are applicable in the context of the Board’s Decision (which was decided purely on the ground of delay and lack of proper explanation with documentary evidence in support).  This is yet to mention that most of the grounds lack particulars and were simply bare assertions.  However, for the reasons explained below, I am of the view that the Board had committed an error of law in dismissing the appeal and so leave should be granted to the Applicant to apply for judicial review. 

11.  The starting point is Section 37ZT of the Immigration Ordinance (Cap. 115) which governs the late filing of the Notice of Appeal.  Section 37ZT was amended in 2021, and the present version has become operative since 1 August 2021.  The present version does not require that the Board must consider the merits of the applicant’s case in determining whether time should be extended (Section 37ZT(2)).

12.  However, the revised legislation does not have retrospective effect.  As the NOA in the present case was filed on 14 September 2020, the old provision applies.  Under the previous Section 37ZT(2), in considering whether it should allow the late filing of the Notice of Appeal, the Board should take into account “any other relevant matters of fact within the knowledge of the Board” apart from the explanation for the delay.

13.  The leading authority on this issue is the English Court of Appeal decision in The Secretary of State for the Home Department v Begum [2016] EWCA Civ 122, 3 March 2016.  The approach adopted in Begum has generally been referred to as the 3‑stage approach.  The first stage of the Begum analysis is to identify and assess the seriousness or significance of the failure to comply with the rules.  The second stage is to consider why the failure occurred, that is to say whether there is a good explanation for it.  The third stage is to evaluate all the circumstances of the case so as to enable the Court to deal with the application justly. 

14.  In respect of the third stage, it is well established that the law required the Board to consider the merits of the Applicant’s case:- Re Khan Kamal Ahmed [2019] HKCA 377, at paragraphs 18 to 20; Re Qasim Ali [2019] HKCA 430, at §§24-26; Re Madbar Abdul Salam [2019] HKCA 640, at §§25-28.

15.  In the present case, the Board simply dismissed the appeal on the ground that the Applicant did not submit relevant documentary evidence in support of the reasons for delay (§§13-14 of the Board’s Decision).  The Board had completely failed to take into account the merits of the case in deciding whether to allow the extension of time. 

16.  The primary decision-makers in a claim for non-refoulement are the Director and the Board.  The role of the Court in judicial review is not to re-assess the non‑refoulement claim but to scrutinize the Board’s decision for errors of law, procedural unfairness or irrationality.  The discretion to extend the time for appeal is vested in the Board. In the present case, the Board had exercised such discretion incorrectly by failing to take into account the merits of the case.  If the judicial review of the Board’s Decision succeeds, the Board’s Decision will be quashed and the matter will be remitted to the Board to see if, in the circumstances of the case, it should extend the time so as to undertake the re-hearing process. 

17.  In the premises, leave is granted for the Applicant to apply for judicial review in respect of the Board’s Decision on the ground that it is erroneous in law and procedurally unfair to refuse the late filing of the NOA without considering the merits of the case.

Conclusion

18.  I make an order that the Form be amended as described above.  I allow the Leave Application, and direct the Applicant to issue the Originating Summons within 14 days of this decision, and serve a copy thereof together with all relevant documents on the Board as respondent and on the Director as interested party.

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

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