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HCAL 3770/2019
[2025] HKCFI 1413
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3770 of 2019
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Mohammed Aslam |
Applicant |
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and |
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
Putative Respondent |
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and |
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Director of Immigration |
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) Philips Wong:
1. Form 86 be amended as follows:- (1) the Torture Claims Appeal Board / Non‑refoulement Claims Petition Office be named as the Putative Respondent; and (2) the Director of Immigration be named as the Putative Interested Party.
2. The application for leave to apply for judicial review be dismissed.
Observations for the Applicant:
Introduction
1. By Form 86 filed on 18 December 2019 (the “Form”), the Applicant applied for 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 12 December 2019, with reference number “BOR 1154/18/6/8/IN284”[1] (the “Board’s Decision”).
2. In the Form, the Applicant has named the adjudicator responsible for the Board’s Decision as the proposed respondent, and the Board as the proposed interested party. As it is trite that the Board should be the proposed respondent and the Director of Immigration (the “Director”) should be the proposed interested party, I make an order to amend the Form on the court’s own motion.
3. The Applicant had requested an oral hearing for the application. The hearing took place on 13 March 2025 and the Applicant attended in person. The Applicant stated that he had been in Hong Kong for many years, and had a 17-year-old son in Hong Kong. Other than that, the Applicant did not make any submissions in support of the Leave Application.
Background
4. The Applicant’s background, the basis of his claim and the arguments he advanced had been set out in details in the Director’s decisions dated 29 September 2014 and 1 December 2016. For the purpose of the present Leave Application, I do not consider it necessary to repeat the same here. The hyperlink to the Board’s Decision, the subject matter of the intended judicial review, is included below[2] for reference.
Discussion
5. The Applicant applied for leave for judicial review of the Board’s Decision in which the Board refused the Applicant’s late filing of the Notice of Appeal/Petition (the “NOA”) against the Director’s decision dated 1 December 2016 (the “Director’s Decision”).
6. The applicable legal principles relating to application of this sort are well established. The Court will not intervene by way of judicial review unless there are errors of law, procedural unfairness or irrationality in the decision of the Board. (See Nupur Mst v Director of Immigration [2018] HKCA 524, at §14)
7. In the Form and in the supporting Affirmation, the Applicant did not provide any grounds in support of the Leave Application.
8. Section 37ZT of the Immigration Ordinance (Cap. 115) governs the late filing of the Notice of Appeal. Section 37ZT was amended in 2021, and the present version has become operative since 1 August 2021. The present version does not require the Board to consider the merits of the applicant’s case in determining whether time should be extended (Section 37ZT(2)).
9. However, the revised legislation does not have retrospective effect. As the NOA in the present case was filed on 29 June 2018, the old provision applies. Under the previous Section 37ZT(2), in considering whether it should allow the late filing of the Notice of Appeal, the Board should take into account “any other relevant matters of fact within the knowledge of the Board” apart from the explanation for the delay.
10. The leading authority on this issue is the English Court of Appeal decision in The Secretary of State for the Home Department v Begum (2016) EWCA Civ 122, 3 March 2016. The approach adopted in Begum has generally been referred to as the 3-stage approach. The first stage of the Begum analysis is to identify and assess the seriousness or significance of the failure to comply with the rules. The second stage is to consider why the failure occurred, that is to say whether there is a good explanation for it. The third stage is to evaluate all the circumstances of the case so as to enable the Court to deal with the application justly.
11. In respect of the third stage, it has been well established that the law required the Board to consider the merits of the Applicant’s case:- Re Khan Kamal Ahmed [2019] HKCA 377, at paragraphs 18 to 20; Re Qasim Ali [2019] HKCA 430, at paragraphs 24 to 26; Re Madbar Abdul Salam [2019] HKCA 640, at paragraphs 25 to 28.
12. In the present case, the Board had correctly cited the legal principles (paragraphs 8 to 11, 14 of the Board’s Decision). It had also correctly applied the same to the facts of the present case (paragraphs 15 to 19 of the Board’s Decision).
13. In particular, having considered the length of the delay (paragraph 16 of the Board’s Decision), and the lack of good reasons for the delay (paragraph 17 of the Board’s Decision), the Board proceeded to consider the other circumstances of the case.
14. In this regard, it is pertinent to note the nature of the Director’s Decision. The Director had already issued a comprehensive decision refusing the Applicant’s claim on 29 September 2014 (the “Director’s Earlier Decision”). The Applicant had applied to appeal against the said decision out of time but the application was refused by the Board on 12 December 2019. Subsequent to the issuance of the Director’s Earlier Decision, on 27 October 2016, the Director issued a letter to the Applicant inviting him to submit additional facts, if any, which he considered relevant to his non-refoulement claim on all applicable grounds, in particular in relation to right to life under Article 2 of the Hong Kong Bill of Rights (“BOR 2”), in case the Applicant had omitted any relevant facts in relation thereto before because of any misunderstanding on what “all applicable grounds” means. The Applicant however did not submit any additional materials or facts as directed. As a result, the only issue the Director needed to consider in the Director’s Decision was whether the evidence previously submitted was sufficient to establish a personal and real risk of the Applicant’s absolute and non-derogable rights upon his return to India. Based on the Director’s findings in the Director’s Earlier Decision, the Director concluded that the Applicant’s claim failed under BOR 2.
15. From what the Board had stated in paragraphs 18 and 19 of the Board’s Decision, I am satisfied that the Board had duly considered all the circumstances of the case, including the merits thereof. In particular, given the nature of the Director’s Decision, and that no grounds was provided in the NOA, it is clear that the Board was of the view that the appeal was unlikely to succeed in any event.
16. In short, I have considered the Board’s Decision in details. I do not find any error of law, procedural unfairness or irrationality. Neither has the Applicant been able to demonstrate any of the same. There is nothing to indicate that the Board had failed to take into account any relevant matters. The Board’s Decision satisfies the enhanced Wednesbury test and is not Wednesbury unreasonable or irrational. I am not satisfied that the Applicant’s intended challenge of the Board’s Decision is reasonably arguable with any realistic prospects of success. Accordingly, I refuse to grant leave for judicial review.
17. Leave application of this sort is meant to be a filtering process and I am not expected to give elaborated reasons for my decision (see Re Zunariyah [2018] HKCA 14, at §23). Suffice for me to state that in reaching the decision, I have considered all the relevant documents before me.
Conclusion
18. In the premises, I make an order that the Form be amended as described above and the Leave Application be dismissed.
Dated the 7th day of April 2025
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( Seline Sze ) |
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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 07/04/2025
Mohammed Aslam
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 07/04/2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
BOR 1154/18/6/8/IN284
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 1074/08 (Formerly RBCZ 685/08)
RBCZ 9000714/16 (formerly RBCZ 685/08)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1]There were two decisions issued by the Board on 12 December 2019, but with different reference numbers.
[2]https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003770_2019_files/1st_Board's_Decision.pdf
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