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

HCAL 1696/2020

[2025] HKCFI 5426

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1696 of 2020

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 the documents and oral submissions by the Applicant in open court;

(1)  Form 86 be amended, naming only the Torture Claims Appeal Board / Non-refoulement Claims Petition Office as the Putative Respondent and the Director of Immigration be named as the Putative Interested Party.

(2)  The application for leave to apply for judicial review out of time be dismissed.

Observations for the Applicant:

Introduction

1.  By a Form 86 filed on 21 August 2020 (the “Form 86”), the Applicant applied for leave to apply for judicial review against the decision by the Torture Claims Appeal Board (the “TCAB”) dated 23 March 2020 (the “TCAB Decision”), which refused his application to make a late filing of the appeal/petition from the decision of the Director of Immigration (“DOI”) dated 28 February 2019.

2.  I amend the Form 86 on my own motion to name only the TCAB as the putative respondent and the DOI as the putative interested party.

3.  The Applicant requested for a hearing of this application and he attended the same.  He orally submitted that his life continued to be under threat.

Background

4.  The Applicant is a national of Pakistan. He first lodged a torture claim in 2009 which was dismissed by the DOI on 17 April 2012.  He then made a non-refoulement claim on other grounds in 2013.  He was required to complete and submit a Supplementary Claim Form (“SCF”) before 10 October 2018 (the same day on which Duty Lawyer Service ceased to act for him), with which he failed to comply and there was no application for an extension of time.  The non-refoulement claim was therefore considered to have been withdrawn on 11 October 2018, and this was communicated to the Applicant by way of a letter from the DOI on 22 October 2018 to the last known address of the Applicant. 

5.  By letter dated 31 January 2019, the Applicant wrote to the DOI requesting to re-open his claims.  The DOI responded on 4 February 2019 asking for further information and evidence to account for the failure to return the completed SCF before the re-opening request may be considered.  The Applicant wrote on 18 February 2019 explaining that he could not return the SCF primarily because he did not receive a blank form (and he had also fallen sick).  This was contrary to the DOI’s information whereby the Applicant acknowledged receipt of a blank SCF on 22 August 2018. Further, the Applicant never contacted the DOI by phone or letter expressing difficulty in filling in the SCF, and there was no evidence that the Applicant approached the Duty Lawyer Service for assistance (that was before the time they ceased to act).  The DOI therefore decided on 28 February 2019 not to allow the Applicant’s re-opening request.

6.  The Applicant was late in filing his notice of appeal (he only filed on 2 May 2019 when the deadline fell on 16 March 2019), and the TCAB refused his application to make a late filing of the Notice of Appeal / Petition (i.e. the TCAB Decision being the subject matter of this application).

7.  The relevant facts and procedural history have been sufficiently set out in the TCAB Decision, which can be viewed through a hyperlink[1].  I shall therefore not repeat them.

Discussion

8.  The leave application operates as a filtering process and there is no requirement or expectation to give elaborate reasons for my decision: Re Zunariyah [2018] HKCA 14 at [23].  It is sufficient to state my observations after considering the TCAB Decision and the materials adduced by the Applicant.

9.  I remind myself that in a judicial review, this court does not provide a further avenue of appeal.  Though in non-refoulement cases an enhanced standard in scrutinizing the decision of the TCAB is required given the seriousness of the issue at hand, this court should not usurp the role of the TCAB, which together with the DOI are the primary decision-makers.  A finding of fact is exclusively within the realm of the TCAB, and this court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the TCAB: Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(1)].  There must be a reasonably arguable case with a realistic prospect of success before leave for judicial review will be granted: Peter Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676. 

10.  In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly: Ho Loy v Director of Environmental Protection (unreported, HCAL 21/2015, 22 December 2016) at [142], and further to make full and frank disclosure of all material facts to be verified by an affidavit.

11.  The Applicant complained in the Form 86 that the TCAB Decision was unfair, Wednesbury unreasonable, failed to give appropriate weight to state acquiescence and insufficient state protection, and that the procedure was improper when assessing whether to accept the Applicant’s explanations.

12.  These grounds must be understood in light of what the TCAB decided.  It was, after all, not a decision dealing with the substantive merits of the Applicant’s claims, for the Applicant has singularly failed to provide any material for such consideration to meaningfully take place.  After the passage of more than 7 years, the Applicant has still not provided his SCF. Accordingly, I do not see how the concepts of state protection and state acquiescence are relevant.  The simple question is whether the TCAB was correct (in the public sense) in refusing to extend time in favour of the Applicant.

13.  I note that the TCAB properly took into account of the then-in-force section 37ZT of the Immigration Ordinance which governs a late filing of the notice of appeal [12].  The TCAB also duly referred to the English authority of Begum [10] (the TCAB Decision had a formatting issue which led to incorrect paragraph numbers).  The TCAB found that there was no reasonable explanation for the lateness [11].  The TCAB further correctly applied its mind to consider substantive merits to evaluate the overall circumstances [11-12] (see Re Khan Kamal Ahmed [2019] HKCA 377 at paragraphs 16- 22), but since no material has been provided to the TCAB at all (which was solely attributable to the Applicant’s fault), the TCAB was fully entitled to come to the conclusion that there were no special circumstances to allow the late filing of the Notice of Appeal [13]. This leave application is accordingly without merit.

14.  I further note that the present leave application was brought out of time, given that Order 53 rule 4(1) requires the leave application to be taken out within 3 months after the TCAB Decision was made. Given that I consider that the proposed judicial review is not reasonably arguable, I refuse to extend time for the Applicant (in any case no reasons were given for the lateness).

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