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

HCAL 2977/2019

[2025] HKCFI 1872

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2977 OF 2019

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BETWEEN

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JUDGMENT

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Introduction

1.  This is the Applicant’s application by Form 86 filed on 10 October 2019 for leave to apply for judicial review (the “leave application”) of:

(1) the decision of the Director of Immigration (the “Director”) made on an unknown date but notified to him on 30 July 2019 (“Decision (1)”), and

(2) a decision of the immigration officer on behalf of the Director in his Notice of Decision dated 6 March 2017 (the “Notice”), refusing his application for non-refoulement protection under BOR 2 Risk[1], BOR 3 Risk [2] and Prosecution Risk[3] grounds (“Decision (2)”).

2.  In his supporting affirmation filed on the same date with his Form 86, the Applicant made some general and un-particularised complaints about the decisions and exhibited a copy of Decision (2). He did not exhibit Decision (1) or a copy of it. For the present purpose, there is no need to set out those complaints. Suffice it is to say, that Decision (2) has been fairly identified in the Form 86 and supporting affirmation, but Decision (1) has not.

3.  On 6 May 2025, the Applicant filed an application by affirmation seeking leave to withdraw his leave application (the “withdrawal application”). By that time, his leave application had been heard on 23 April 2025 and reserved for decision. A decision had been reached by the Court and the judgment was in the course of preparation. Notice of handing down of the judgment was issued on 7 May 2025.

4.  The Applicant has not furnished the necessary information to enable his withdrawal application to be determined, in particular, that he made the decision to withdraw voluntarily out of his own free will; that it would be safe for him to return to his home country and that he understands the consequences if the withdrawal application was allowed. The withdrawal application is not ready for immediate determination. Thus, although it was filed before the notice was issued, it would not be appropriate to withhold the issue of the judgment which would be ready for handing down well before the Applicant could have provided the necessary information to support his withdrawal application in compliance with the Court’s direction to be issued. Hence, the Court will not set the withdrawal application down for hearing or give directions for the further conduct of that application. The Court will therefore allow the delivery of the judgment to take its course. In the circumstances, the Applicant’s withdrawal application is refused.

The background

5.  The Applicant is a Pakistani national. He was arrested by the police on 9 October 2009 and referred to the Immigration Department. He claimed he entered Hong Kong illegally from the Mainland. He made a torture claim under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the “Torture Claim”) on 12 October 2009. His Torture Claim was rejected by the Director on 26 January 2012. His petition against that decision was refused for being made out of time. That decision is final.

6.  He then made a non-refoulement claim under the Unified Screening Mechanism (the “USM”) by written representation dated 24 September 2013. His USM claim was assessed on all applicable grounds under the USM other than Torture Risk grounds (which had been determined under his Torture Claim), namely: BOR 2 Risk, BOR 3 Risk; and Persecution Risk grounds. His claim was rejected by the Director’s Decision (2). On 13 March 2017, he filed a notice of appeal against Decision (2). But, on 22 February 2018, he applied to withdraw his appeal before the appeal was heard. His application was approved by the Board on the same day and the Board directed that Decision (2) be confirmed.

Leave to review Decision (1)

7.  The Applicant could not produce a copy of the Decision (1) in Court, but said he had a copy the decision at home which he could produce on Friday. Attempts were made at the hearing to find out from him what Decision (1) was about. But, he could not describe what it was or what it was about. He said it was a decision from the Immigration Department informing him that his case “was over” and “not approved”. He said he wanted to return to Pakistan. He had kept on making enquiries about his case. Two years had lapsed, the land dispute which was troubling him was still ongoing. Hence, he wanted to stay. That appear to be what Decision (2) was about. Anyway, the Court allowed him more time to produce the decision and ordered that unless he produce the decision by 4 pm on Monday, 28 April 2025, he be barred from producing a copy of Decision (1) and the Court will determine his leave application without it.

8.  By the date of this Form CALL-1, the Applicant has not produced a copy of Decision (1). There is no such decision to be reviewed. The leave application in respect of Decision (1) is refused for want of subject matter for review.

Explanation for the delay in applying in respect of Decision (2)

9.  The leave application was filed thirty-one and half months after the date of Decision (2). Pursuant to section 21K(6) of the High Court Ordinance and Order 53, rule 4(1) of the Rules of the High Court, the leave application was lodged twenty-eight and half months out of time. Extension of time to apply is required.

10.   In AW and Director of Immigration and William Lam[4], 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. However, where an application is many months out of time, leave may be refused “however strong the complaint might otherwise be”, see Po Fun Chan v Winnie Cheung[5], per Litton PJ. The delay in this case is so substantial that leave may be refused on this ground alone without considering the merits of the substantive application, unless the Applicant has a reasonable and credible explanation for the delay.

11.  Despite clear warning in the Form 86 that an applicant is required to state his grounds for application and reasons for delay, if any, the Applicant provided neither. There is no dispute that he had received Decision (2) in time and filed a notice of appeal against it on 13 March 2017 and then withdrew the appeal on 22 February 2018 more than eleven months later. He could have no explanation for the very substantial delay. For this reason alone, his leave application in respect of Decision (2) is refused following Po Fun Chan v Winnie Cheung. However, the Court considered the question of merits because of an interesting point of law raised by this application.

Leave to review Decision (2)

12.  The issue raised by this leave application in respect of Decision (2) is whether the Director’s decision in this two-tier decision making process is reviewable judicially. In Moshsin Ali^[6], the Court of Appeal held, given the administrative structure of this two-tier decision making process, the immigration officer’s decision is not one which is susceptible to judicial review once an appeal to the board is pursued by a claimant. The Court of Appeal identified the following important features of this two-tier process which led to its conclusion:

(1) there is no limitation imposed on the board in carrying out its review function such as by being required to find appellate error before it can reverse the decision being reviewed;

(2) the board is independent of the Immigration Department and can receive new evidence that was not before the immigration officer;

(3) the board is presided over by a person with legal training;

(4) the unrestricted nature of the board’s review function, the powers it is given and the processes it employs provide an opportunity for a claimant to raise with the board any defect in the proceedings before the immigration officer and for the board to cure any such defect; and

(5) the board’s decision brings finality to the administrative processing of the claim by the provision of a reasoned decision.

13.  Moshsin Ali was a case in which the claimant applied for judicial review of the Director’s decision after he had unsuccessfully appealed the decision to the Board. The Court of Appeal’s dicta seems to imply that but for the claimant’s having appealed, the Director’s decision changed from one which was amenable to judicial review to one which is not. This Court rhetorically asks why and how the fact that the claimant had invoked the second tier of this two-tier process would cause such a change in the nature of the Director’s first tier decision. The important features of this two-tier process remain the same before or after the appeal was invoked. The distinction between the Board’s very wide powers to make its own finding of fact and determine the merits of the claim as opposed to the court’s very limited power to review only for errors of law, procedural unfairness and irrationality also remains the same.

14.  If the claimant has proceeded to appeal, the initial decision is no longer susceptible to challenge for it has been or would be superseded, whether upheld or otherwise, by a higher power decision maker, ie a legally qualified and independent board. That is what was decided by Moshsin Ali. Even if he has not appealed, by its very nature as a first-tier decision in a two-tier decision making process, it should also not be amenable to judicial review, especially because there is a prescribed statutory procedure for challenging the decision. Judicial review is simply not available. Whether the claimant exercises his right to invoke this procedure is a matter of his choice, which could not have the effect of changing the nature of the decision as a first-tier decision. The learned authors in De Smith’s Judicial Review^[7] seem to be of the same opinion. They submit without any qualification as to whether the claimant has appealed that “a decision may be part of a two-tier process, so that an initial determination is superseded by a later one, with the effect that the first decision may no longer be challenged.” Thus, I do not think it could have been the intention of the Court of Appeal to lay down by that dicta any principle that by invoking the two-tier process the nature of the Director’s decision changed from one which is amenable to judicial review to one which is not. The mention of an appeal being pursued was just a reference to the actual factual situation in that case, and not meant to be a fact forming part of the ratio decidendi of the decision.

15.  Even if there were very obvious errors of law, procedural unfairness or irrationality in the Director’s decision, the claimant should proceed with an appeal under the two-tier decision making process in accordance with the statutory scheme as set out under the Immigration Ordinance so that his claim could be properly heard afresh by a legally qualified and independent board instead of making limited challenges of the first-tier decision by way of judicial review which could, at best, result in the first-tier decision being squashed and his claim reconsidered by another immigration officer.

16.  Thus, this Court takes the view that on a proper construction of Moshsin Ali, what the Court of Appeal decided is that having regard to the special features of the two-tier decision making process in the non-refoulement scheme and the availability of a statutory prescribed appellate procedure, the decision of the Director being the initial decision in this two-tier decision making process is not amenable to judicial review, regardless whether the claimant has invoked the second tier process by appealing to the Board. If this Court is wrong in its construction of Moshsin Ali, for reasons as mentioned above it shall extend the principle in that case to cover the situation where the claimant has not invoked the appellate process. Hence, following Moshsin Ali, this Court finds that the Director’s Decision (2) is equally not amenable to judicial review. There are no merits in the leave application in respect of Decision (2).

Conclusion

17.  The Applicant’s application for leave to apply for judicial review of Decision (1) is refused for want of subject matter to review. He has no explanation for the very substantial delay in filing the leave application in respect of Decision (2) and there are no merits in that leave application. Hence, extension of time to file the leave application in respect of Decision (2) and the application for leave to apply for judicial review of Decision (2) are refused. The Applicant’s application for leave to withdraw his leave application is refused.