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

HCAL 2768/2019

[2025] HKCFI 5067

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2768 of 2019

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.   Leave to apply for Judicial Review be granted; and

2.   The leave granted will expire after 14 days from the date of this decision and the directions set out in the last page of this Form CALL-1 must be complied within 14 days hereof.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 20 September 2019 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 4 July 2019 refusing his late filing of the Notice of Appeal (“NoA”) against the decision of the Director of Immigration (the “Director”) in his notice of decision dated 19 January 2018 (the “Notice”) refusing his application for non-refoulement protection. 

2.  The Applicant is a Pakistani national.  His claim for non-refoulement protection was assessed and rejected by the Director’s Notice dated 19 January 2018 which was delivered to him care of the Duty Lawyer Service (“DLS”), then representing him.  On 22 June 2018, the Board received his NoA.  By then, it was 4 months and 17 days out of time.  The explanation he gave for the late filing was that he did not speak or write English.  The Board did not consider that an appropriate explanation and invited him to submit a further representation.  On 6 July 2018, he submitted a further representation re-iterating the same reason and added that the Notice was given to him by his assigned duty lawyer on or about 12 to 15 February 2018, ie after the 14 days’ period.  He did not provide any supporting documentary evidence.  Upon enquiry with the DLS, the Board found out that the Notice had been given by the assigned lawyer to the Applicant at Tung Tau Correctional Institution on 27 January 2018.  The Applicant was not telling the truth. 

3.  Applying the three stage enquiry in The Secretary of State for the Home Department v Begum[1], the Board found the delay of 4 months and 17 days serious or significant; there was no circumstances that explain why the Applicant was unable to file the NoA within time; and the Board was not aware of any special circumstances that would make it unjust not to allow the late filing of the NoA.  Hence, it refused the late filing.

Grounds for judicial review

4.  The Applicant did not advance any grounds of appeal in his Form 86.  In his supporting affirmation, he said he was not satisfied with the Director’s decision and repeated that his life would be in danger if returned to his home country.  At the hearing, he repeated his problem in Pakistan and said he did not want to say anything to explain his late filing.  In the absence of specific grounds of application or grounds with sufficient particulars, the Court could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision.

Overall scrutiny

5.  The decision which the Applicant seeks to judicially review is the Board’s Decision refusing his late filing of the NoA. Section 37ZT(2) of the Immigration Ordinance is relevant.  Having rigorously examined the Decision, the papers, and the evidence with anxious scrutiny, this Court is satisfied that the Board had correctly set out the law and the relevant statutory provisions and legal principles relating to late filing of NoA, correctly identified the issues and observed a high standard of fairness.  It reminded itself of the provisions under section 37ZT of the Immigration Ordinance.  It adopted the three stage enquiry in Begum.  This Court has no qualms with its finding in respect of the first two stages.  In the third stage of its enquiry, the Board found, in the view of this Court correctly, that the Applicant had made an informed decision to ignore the statutory deadline for filing of the notice of appeal.  The Board then came to the conclusion that it was not aware of any special circumstances that would make it unjust not to allow the late filing of the NoA.  Hence, it disallowed the late filing.

6.  This Court is conscious of the Court of Appeal decision in Madbar Abdul Salam[2]. The Court of Appeal held:

“25.  As the last of the 3-stage enquiry alluded to in The Secretary of State for the Home Department v Begum, …, even where there is a serious or significant breach for which no good reason is given, the decision maker should move to evaluate all the circumstances of the case that he knows of. 

26.  In identifying what circumstances are relevant, it is imperative to bear in mind that the discretion to allow the late filing of a notice of appeal is exercisable when it would be “unjust” not to do so by reason of “special circumstances”: see s 37ZT(3) of the Ordinance.

27.  The Board stated at [9], [15] and [20] of its Decision that it had considered/evaluated all the circumstances of the case.  However, we can find no reference in the Board’s Decision to the merits or otherwise of the NRF Claim.  As for the Judge, he expressly took the view that merits need not or should not be considered (see Form CALL-1 at [43]).

28.  In our opinion, it is arguable that it would be unjust not to allow the late filing of a notice of appeal where the appeal is meritorious and that the Board should have, under s 37ZT(2)(b) of the Ordinance, looked at the merits or otherwise of the appeal (albeit on paper without a hearing) regardless of the procedural breaches or the lack of explanation therefor.  See Re Khan Kamal Ahmed, CACV 563/2018, [2019] HKCA 377, 2 April 2019, [16]-[20] and Re Qasim Ali, CACV 547/2018, [2019] HKCA 430, 8 April 2019, [23]-[26].

29.  For these reasons, we are of the view that the intended application for judicial review is reasonably arguable, meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.”

Given the strong language used in paragraph 25 of the decision, even in the case of a deliberate and contemptuous breach of the procedures, the Board should move to evaluate all the circumstances of the case that he knows of, including merits.  In the present case, as in Madbar Abdul Salam, this Court can find no reference in the Decision to the merits.  Accordingly, this Court has to reach the conclusion that it is arguable that the Decision is reviewable for error of law. 

Conclusion

7.  For the above reasons, the Court grants the Applicant leave to apply for judicial review of the Board’s Decision.  However, this Court gives a stern warning that the leave granted will expire after 14 days from the date of this decision and the directions set out in the last page of this Form CALL-1 must be complied within 14 days hereof.  

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

[1] [2016] EWCA Civ 122 (03 March 2016)

[2] CACV 57/2019, [2019] HKCA 640