MD SALIM v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1276/2020

[2025] HKCFI 3465

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1276 of 2020

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

Following;

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

1.  Form 86 be amended on the court’s own motion as follows:-

a.  The name of the Putative Respondent be amended to “Torture Claims Appeal Board/Non-refoulement Claims Petition Office”; and

b.  the Director of Immigration be named as the Putative Interested Party.

2.  The time for filing the Applicant’s application for leave to apply for judicial review be extended to 23 June 2020.

3.  Leave be granted to the Applicant to apply for judicial review in respect of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dated 19 December 2019.

Observations for the Applicant:

Introduction

1.  By a Form 86 filed on 23 June 2020 (the “Form 86”), the Applicant sought leave to apply for judicial review (the “Leave Application”) against the decision of the Torture Claims Appeal Board / Non‑refoulement Claims Petition Office (the “Board”) dated 19 December 2019 (the “Board’s Decision”).

2.  As it is usual practice that the Director of Immigration (the “Director”) should be the proposed interested party and to ensure that the Board is correctly named, I make an order to amend the Form 86 accordingly on the court’s own motion.

3.  An oral hearing was requested by the Applicant. It took place before me on 23 July 2025 (the “Hearing”) and the Applicant attended in person.

Background

4.  The Applicant’s background, the basis and history of his claim and the arguments he advanced had been set out in details in the Board’s Decision, and it is not necessary for me to repeat the same herein. The hyperlink to the Board’s Decision is included below[1] for reference. In short, the Applicant claims that he will be harmed or killed by members or associates of the Bangladeshi Awami League (“AL”), a political party if he were to return to Bangladesh.

The Leave Application is out of time

5.  By virtue of Order 53, rule 4(1) of the Rules of the High Court, Cap 4A, the applicant has to make the Leave Application within 3 months when the grounds for the Leave Application first arose, i.e. when the Board’s Decision was made. Hence, the deadline for making the Leave Application is 19 March 2020. However, the Form 86 was filed late for about 3 months.

6.  In AW v Director of Immigration and William Lam CACV 63/2015 (unreported, 3 November 2015), the Court of Appeal held that the following factors are relevant in determining whether to grant leave to file an application for leave to apply for judicial review out of time: (1) length of the delay; (2) explanation for the delay; (3) merits of the substantive application; (4) prejudice to the applicant if leave is refused vis-à-vis that to the respondent and public administration if leave is granted; and (5) whether the application raises any questions of general public importance, and whether those questions are likely to have to be resolved by the courts in any event.

7.  In the present case, the delay of about 3 months is not insignificant. The Applicant did not seek any time extension or give any explanation in his Form 86 and supporting affirmation despite being expressly requested to do so in the Form 86. At the Hearing, the Applicant made an oral request to me to allow his late filing. He claimed that he did not know about the Board’s Decision as he was detained in Castle Peak Bay Immigration Centre from time to time due to his failure to comply with the regular reporting conditions in his recognizance. However, he was unable to provide me with a coherent explanation as to how and when did he find out about the Board’s Decision despite the court having tried to clarify his account a number of times at the Hearing. In any event, I am not satisfied that the Applicant had provided a good reason for the delay.

8.  In my view, the most crucial factor in deciding whether to exercise my discretion to extend time is the merits of the Leave Application. If it is bound to fail, no meaningful purpose can be served by granting leave even if I am prepared to assume in favour of the Applicant that he has an innocuous explanation for the delay. Hence, as a matter of expediency, I should focus on the merits of the Leave Application.

Merits

9.  It is trite law that:-

(1)  Determination of the merits of a non-refoulement claim is essentially within the remit of the Director and the Board, who are the primary decision-makers in the evaluation of the evidence based on the materials available to them. A court will not usurp their primary decision-making role in a judicial review, which is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh in the absence of any legal error. A finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.]

(2)  An applicant, even if unrepresented, is required to properly identify the grounds of judicial review in the Form 86, and to fully and frankly disclose all material facts and potential legal answers, see: Ho Loy & Another v Director of Environmental Protection (HCAL 21/2015, 22 December 2016) per Chow J. (as he was then) at §142.

10.  In his supporting affirmation, the Applicant claimed that the decision by the Director was unfair and that no proper inquiries were made to understand his case. I assume that he was referring to the Board.

11.  Looking at the Board’s Decision:-

(1)  The Applicant was 5 days late in filing his Notice of Appeal/Petition (“NOA”) to the Board. No explanation was given by the Applicant for the late filing despite being expressly requested to do so (§§3-6).

(2)  The Board referred to s.37ZT of the Immigration Ordinance in force as the time (Cap 115) (the “Ordinance”) which applies to late filings of the NOA where the Board must decide as a preliminary decision without a hearing whether the late filing would be allowed. Under s.37ZT(2), the Board may only take into account of: (a) the statement of reasons stated in the application for late filing of the NOA and any accompanying documentary evidence relied on in support of those reasons and (b) any other relevant matters within the knowledge of the Board.

(3)  Notwithstanding the lack of reasons or documents on the late filing, the Board applied the 3-stage test espoused in The Secretary of State for the Home Department v Begum (2016) ECWA Civ 122 (§13).

(4)  For stages 1 and 2, the Board found the delay of 5 days to be serious and significant (§15). The Board also found that there was no good reason for the breach (§16).

(5)  For stage 3, the Board endorsed the decision of the Director dated 24 January 2019 (the “DOI Decision”) and considered that it is fair and just not to allow the late application (§17).

(6)  Accordingly, the late filing of the NOA was refused (§18).

12.  At the Hearing, the Applicant said he would not be able to go back to Bangladesh in the next 12 months as there would be a general election in 2026 Depending on the outcome of the election, it may be safe for him to go back. The Applicant has failed to adduce any proper evidence on this new development and in any event I do not see how this could assist the Applicant’s case.

13.  Although not raised by the Applicant, I consider the following to be reasonably arguable:-

(1)  The Board’s finding that a delay of 5 days being a serious and significant delay is Wednesbury unreasonable. I note that in Re Qasim Ali [2019] HKCA 430 at §22, the Court of Appeal held that in a similar context, a delay of 8 days cannot on “any view” be regarded as serious or significant.

(2)  It was also decided in Qasim Ali at §24 that in considering whether it would be unjust not to allow the late filing by reason of special circumstances for the purpose of s.37ZT(3) of the Ordinance, the Board should consider the merits of the appeal. It is reasonably arguable that the Board had not independently applied its mind to consider the substantive merits of the Applicant’s non-refoulement claim as it only expressed agreement without any analysis.

Conclusion

14.  I make an order that the Form 86 be amended as described above and that leave be granted out of time on the following grounds:-

(1)  that the Board’s finding that the Applicant’s delay was serious and significant was Wednesbury unreasonable; and

(2)  that the Board had failed to independently assessed the substantive merits of the Applicant’s non-refoulement claim, which is a relevant matter of fact within the Board’s knowledge within the meaning of s. 37ZT(2)(b) of the Ordinance.

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