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HCAL 171/2020
[2025] HKCFI 2024
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 171 of 2020
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Nadeem Muhammad |
Applicant |
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and
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
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Putative Respondent |
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and
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Director of Immigration
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Putative Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following:
Order by Deputy High Court Judge (Non-refoulement Claims) Teresa Wu:
The application for leave to apply for judicial review be dismissed.
Observations for the Applicant:
Introduction
1. By Form 86 (“Form 86”) dated 16 January 2020, the Applicant applies for leave to apply for judicial review (“the Leave Application”) of the decision of the Director of Immigration (“the Director”) dated 10 September 2019 (“the Director’s Decision”), refusing to re-open his non-refoulement claim on grounds of cruel, inhuman or degrading treatment or punishment (CIDTP).[1]
Discussion
2. The Applicant’s intended challenge of the Director’s Decision is obviously not reasonably arguable with any realistic prospects of success and leave should be refused (see Peter Po Fun Chan v Winnie Cheung & Another (2007) 10 HKCFAR 676).
3. The Torture Claims Appeal Board/ Non-refoulement Claims Petition Office (“the Board”) received a Notice of Appeal/Petition Non-refoulement Claim (“the Notice of Appeal”) against the Director’s Decision on 4 December 2019 out of time. The deadline for lodging his appeal was 24 September 2019. On 3 March 2020, the Board disallowed the late filing of the Notice of Appeal.[2]
4. As held in Re Moshin Ali[2018] HKCA 549, the decision of the Director is no longer susceptible to judicial review once an appeal to the Board has been pursued and the Director’s decision has been superseded by the Board’s decision. It is therefore not open to the Applicant to challenge the Director’s Decision by way of judicial review.
Conclusion
5. I accordingly make an order that the Leave Application be dismissed.
Dated the 23rd day of May 2025
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( Teresa Ng )
for Registrar, High Court |
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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant
on the 23rd day of May 2025
Nadeem Muhammad
Applicant’s ref. no:
Nil
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on the 23rd day of May 2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 16581/19/12/47/P3258
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 801/10(formerly RBCZ/852/09)
L/M (19800) in ImmD RA 7/37/C
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
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