RE IMRAN ISHTIAQ LONE

CACV 403 /2024, [2025] HKCA 125

On appeal from [2024] HKCFI 2416

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 403 OF 2024

(ON APPEAL FROM HCAL NO. 740 OF 2020)

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J U D G M E N T

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Hon Chu VP (giving the Judgment of the Court):

Introduction

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge To (“the Judge”)  given on 16 September 2024[1] refusing to extend the time for applying for judicial review and dismissing his application for leave to apply for judicial review. 

2.  The intended judicial review is against the decision of the Torture Claims Appeal Board (“the Board”)  refusing to allow the late filing of his notice of appeal in respect of the decision of the Director of Immigration (“the Director”)  which rejected his non-refoulement protection claim having regard to the BOR 2 risk ground.

3.  The applicant had lodged a statement together with his notice of appeal, which we shall treat as his submission in support of the appeal. 

4.  The applicant has consented to the Court of Appeal disposing of his appeal on the papers without an oral hearing.  

The applicant’s claim

5.  The applicant is a Pakistani aged 46.  He entered Hong Kong illegally and was arrested by the police on 30 January 2008.  He made a torture claim[2] on 18 February 2008, which was taken to be and processed as a non-refoulement claim upon the commencement of the Unified Screening Mechanism on 3 March 2014. 

6.  The applicant’s claim is based on fear of being harmed or killed by a person named Khurram and his associates because he had defeated Khurram in a wrestling competition.  His claim was set out in detail in [6] of the Director’s decision dated 13 August 2014.  For the purpose of this appeal, it is not necessary to repeat them.

The Director’s first decision and the Board’s first decision

7.  By a notice of decision dated 13 August 2014 (“the Director’s first decision”), the Director rejected the applicant’s non-refoulement claim having regard to the torture risk[3], BOR 3 risk[4] and persecution risk[5] grounds.  

8.  The applicant appealed the decision to the Board, which heard the appeal on 17 December 2014.  By a decision dated 13 May 2015 (“the Board’s first decision”), the Board dismissed the appeal.  In gist, the Board found the applicant’s evidence incredible and rejected it in its entirety.  The Board also found, on an alternative basis, that even if the applicant’s evidence were to be accepted, his claim did not satisfy the requirements of the applicable grounds.

HCAL 238/2015

9.  On 2 December 2015, the applicant applied to the Court of First Instance for leave to judicially review the Board’s first decision (HCAL 238/2015).  The application was out of time[6]. The applicant was represented by counsel assigned by the Director of Legal Aid at the hearing of the leave application which took place on 2 December 2016 and 7 February 2017.  By a judgment dated 11 July 2017, the Court of First Instance refused to extend the time for applying for judicial review and dismissed the applicant’s leave application.

The Director’s further decision and the Board’s second decision

10.  By a notice of further decision dated 6 January 2017 (“the Director’s further decision”), the Director assessed the applicant’s claim on the BOR 2 risk[7] ground and decided against it. 

11.  On 3 February 2017, the applicant lodged a notice of appeal with the Board to appeal the Director’s further decision.  It was out of time as section 37ZS(1)  of the Immigration Ordinance, Cap. 115 requires a notice of appeal to be filed with the Board within 14 days after notice of the Director’s decision is given to the applicant.  Section 37ZT(2)  of the Immigration Ordinance requires the Board to make a preliminary determination, without a hearing, as to whether to allow the late filing of notice of appeal.  By a decision dated 8 November 2018 (“the Board’s second decision”), the Board decided not to allow the late filing of the appeal.  

The Judge’s decision

12.  The applicant filed a Form 86 and an affirmation on 22 April 2020 to seek leave to apply for judicial review against the Board’s second decision.  The Form 86 did not contain any ground for seeking relief.  In the supporting affirmation, the applicant stated that he disagreed with the decision and that he could not go back to Pakistan because his life would be in danger.  

13.  The applicant’s application was made out of time.  Order 53 rule 4(1)  of the Rules of the High Court, Cap. 4A provides that an application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose.  The applicant’s application was more than 1 year and 2 months late.  He did not provide any explanation for the delay in the Form 86 or the supporting affirmation.

14.  The Judge heard the application at an oral hearing held on 4 September 2024.  By a Form CALL-1 dated 16 September 2024, he refused to extend time and dismissed the application.  The Judge’s reasons are encapsulated in [4] and [5] as follows (footnotes omitted):

“4. The Applicant did not give any explanation for the delay in his Form 86 or supporting affirmation. At the hearing, the Court explored the reasons for the delay with him. He said he had never received the Decision from the Board. He was only informed of the Decision when he was sent to Castle Peak Bay Immigration Centre. He said he had changed his address and was living with a friend in Apliu Street in Shamshuipo at the material time. He had not informed the Board of his change of address. He was arrested in connection with unlawful employment. He told the police his new address but never informed the Board.

5.  As was held by the Court of Appeal in Karamjit Singh and Re Hasmi Rizwan Imran, it is the applicant’s obligation to keep the court or the authorities informed of his means of contact. If he does not, he has to bear the consequence which his failure brings. The natural and inevitable consequence of his changing his address without informing the Board is that he will not receive correspondence from the Board, including the Decision from the Board. He has no reasonable explanation for the delay. The delay is so inordinate as to be beyond the limit which any court could indulge. There is no need to consider the merits of his substantive application as well as the underlying non-refoulement claim. Accordingly, extension of time to file the leave application and the leave application are refused.”

The appeal

15.  By a notice of appeal dated 26 September 2024, the applicant appealed the Judge’s decision to this court. 

16.  The notice of appeal stated that: (1)  the applicant is not satisfied with the decision made on the judicial review application; (2)  the applicant’s case was totally ignored; and (3)  the decision was irrational and unfair.

17.  In the statement lodged together with the notice of appeal, the applicant stated that: (1)  it was unfair to dismiss his case because it was late without reviewing the merits; (2)  his case was based on true facts whereas the Board’s decision was only based on information from the internet; and (3)  all the decisions are irrational, unfair, full of errors and did not carefully consider the material facts and the danger to his life.

Our reasons for decision

18.  The general principles regarding an appeal in a non-refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.  In sum, the role of the court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  Though in non-refoulement cases the court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of issue at hand, the court should not usurp the role of the Board.  The court will not intervene by way of judicial review unless there are errors of law or irrationality procedural or unfairness in the decision of the Board.

19.  At the outset, it should be pointed out that the intended judicial review is in respect of the Board’s second decision which refused to allow the applicant to make a late filing of an appeal against the Director’s further decision.  The application before the Judge and this appeal do not concern the Director’s first decision or the Board’s first decision.  The applicant had already made a challenge against those decisions in HCAL 238/2015 and failed (see [9] above).  It follows that insofar as the applicant argues that the facts of his claim have not been considered, the Board had relied on information from the internet whereas his case is true and his life will be in danger if he returns to Pakistan, these are irrelevant and do not constitute viable grounds of appeal.  

20.  In respect of the Board’s second decision, in determining whether to allow the late filing of the notice of appeal, the Board is required by section 37ZT(2)  of the Immigration Ordinance to only take into account (a)  the statement of reasons stated in the application for late filing of the notice of appeal and any accompanying documentary evidence relied on in support of those reasons; and (b)  any other relevant matters of fact within the knowledge of the Board.  Section 37ZT(3)  further provids that late filing of the notice of appeal may be allowed if the Board is satisfied that, by reason of special circumstances, it would be unjust not to allow the late filing of the notice of appeal. 

21.  The applicant explained in the application for late filing of the notice of appeal that he did not have the key to the letter box at the sub-divided flat where he lived and only received the notice of the Director’s further decision on 2 February 2017 when other residents opened the letter box.  The Board found this was not a reasonable or satisfactory explanation, after taking into account: (1)  the applicant was legally represented and advised at every stage of the first-tier screening of his non-refoulement protection application and must have been aware it was his responsibility to act in a timely manner; (2)  at the time notice of the Director’s further decision was given, the proceedings in HCAL 238/2015 were in progress and the applicant was legally represented in the case; and (3)  the notice of the Director’s further decision was sent to the applicant’s given address, and the applicant never notified the Director he had difficulty in receiving mail sent to the given address. 

22.  The Board also considered there was no denial of justice or unfairness to the applicant given that he was legally represented at every previous stage of his claim.  The Board further had regard to the factual basis of the applicant’s claim and found that it did not disclose anything which might amount to special circumstances by reason of which it would be unfair or unjust not to allow the late filing of the appeal.  

23.  In our view, the Board had given careful consideration to all relevant matters in coming to the determination that the late filing of appeal should not be allowed.  We discern no error of law, irrationality or procedural unfairness.  There is no basis for the court to interfere with its decision. The intended judicial review therefore has no prospect of success.

24.  Moreover, the applicant’s application for judicial review was seriously out of time.  We agree with the Judge that the duty is on the applicant to inform the Board of any change in his address, and the delay was due solely to his failure to do so.  The Judge has therefore justified in taking the view that the delay has not been satisfactorily explained.  This being the case and since the intended judicial review has no prospect of success, it would be futile to extend the time for applying judicial review.  The Judge was correct to refuse to extend time and to dismiss the application.

25.  For the above reasons, the applicant’s appeal is devoid of merits.  Accordingly, we dismiss the appeal.