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

HCAL 133/2020

[2025] HKCFI 2492

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 133 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 the Applicant being absent in open court;

1.  The Form 86 is amended on the Court’s own motion; and

2.  Leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

Introduction

1.  By a Form 86 filed on 13 January 2020 (the “Form 86”), the Applicant applied for leave to apply for judicial review of the decision of the Director of Immigration (“DOI”) dated 21 June 2018 and also the “decision of the Adjudicator dated 19^th December 2019”.  He named the DOI and the “Adjudicator of the Non-refoulement Claims Petition office” as the proposed respondent.

2.  From the papers filed for this application, there was a decision by an adjudicator of the Torture Claims Appeal Board (the “TCAB”) dated 19 December 2019 (the “TCAB Decision”) that affirmed a decision dated 21 June 2018 by the DOI refusing the Applicant’s non-refoulement protection claim.  As the appeal before the TCAB was a hearing de novo, I take it that the Applicant is seeking judicial review on the TCAB Decision.

3.  I accordingly amended the Form 86 on my own motion and named only the TCAB as the putative respondent and the DOI as a putative interested party.

4.  The Applicant requested for a hearing of this application but he was absent at the hearing.  I shall deal with this application on paper.

Background

5.  The TCAB Decision concerned the Applicant’s appeal against the decision by the DOI not to re-open his non-refoulement protection claim.  In gist, the Applicant failed to submit his Supplemental Claim Form (“SFC”) by the deadline set by the DOI (10 May 2018) and thereafter also failed to satisfy the DOI that the failure was due to circumstances beyond his control.  His personal background, the relevant facts and relevant procedural history have been sufficiently set out in the TCAB Decision, which can be assessed through a hyperlink[1], and I shall not repeat the same herein.

Discussion

6.  In a judicial review, this court does not provide a further avenue of appeal.  Though in non-refoulement case an enhanced standard in scrutinizing the decision of the TCAB is required given the seriousness of the issue at hand, this court should not usurp the role of the TCAB, which together with the DOI are the primary decision-makers.  This court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the TCAB (Nupur Mst v Director of Immigration [2018] HKCA 524, [14(1)]).  There must be a reasonably arguable claim with a realistic prospect of success before leave for judicial review will be granted (Peter Po Fun Chan v Winnie Cheung & Anr (2007) 10 HKCFAR 676).

7.  In his affirmation filed in support of the Form 86, the Applicant did not raise any specific complaints in those respects and instead attached a set of grounds on which relief is sought, however the complaints therein were but generic criticisms such as weight to be attached to evidence or mere assertions that different conclusions should have been reached.  What is notable is that these criticisms are all geared towards a substantive decision in respect of a non‑refoulement protection claim, not a decision such as the TCAB Decision here concerning a decision of whether to allow re-opening of a claim in the context of failure to file a claim form in time.

8.  Looking at the TCAB Decision, the TCAB had in mind the correct law governing the matter, i.e. section 37ZG of the Immigration Ordinance (Cap. 115), specifically sub-sections (1) and (3).  In gist, a late submission of claim form (including the SFC in this case), “must be treated” as a withdrawal of the same (s.37ZG(1)), and upon an application to re-open such a claim by the applicant, the DOI “may” re-open the same if the applicant “provides sufficient evidence in writing to satisfy” the DOI that the failure to return a completed claim form was “due to circumstances beyond [the applicant’s] control” [6].

9.  The TCAB had not only all the previous documentary evidence and submissions placed before it to consider [7-29], but also the Applicant’s own testimony at the oral hearing before it [30-34].  All of which the TCAB had carefully considered [35-52] before coming to fully analysed conclusions that the Applicant had failed to establish that the failure to return the completed SCF by the deadline was due to circumstances beyond his control [53-72].

10.  The exercise of the discretion to re-open the claim being premised upon the Applicant satisfying the TCAB that there were circumstances beyond his control preventing him from returning the completed SCF, given the factual conclusions above the discretion rightly did not arise.

11.  All in all, I do not see any error of law, procedural unfairness or irrationality in the TCAB Decision, despite rigorous examination and anxious scrutiny.

Conclusion

12.  For the above reasons, I am not satisfied that this court should intervene by way of judicial review.  I therefore dismiss the application.

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