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

HCAL 397/2020

[2025] HKCFI 3367

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 397 of 2020

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of the documents only;            or
	consideration of the documents and oral submissions by the Applicant in open court;

1.  The Form 86 be amended on the court’s own motion.

2.  Leave to the applicant to file the notice of application for leave to apply for judicial review out of time.

3.  Leave is granted to the applicant to issue a judicial review application against the Board’s Decision.

4.  The applicant shall within 14 days file and issue an originating summons, which copy together with all the relevant documents shall be served on the Board as respondent and the Director as an interested party.

Introduction

1.  By a “Notice of application for leave to apply for judicial review” in the prescribed Form 86 filed on 12 March 2020, the applicant applied for leave to apply for judicial review (“Leave Application”). The intended judicial review was against the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) dated 26 May 2016 (“Board’s Decision”) dismissing the applicant's appeal against a decision of the Director of Immigration (“Director”) dated 28 January 2015 (“Director’s Decision”) rejecting the applicant's non-refoulement claim on all applicable grounds except BOR 2 risk which was covered by a subsequent decision of the Director dated 2 February 2017. The Board’s Decision can be viewed at the following hyperlink: -

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000397_2020_files/the_Board's_Decision.pdf

2.  In his Form 86, the applicant named himself as the interested party. As the Director should have been the interested party, the Form 86 will be amended accordingly on the court’s own motion.

3.  The basis of the applicant’s claim was that he would be harmed or killed by the Pakistani Taliban due to his refusal to join them. The Board’s reasoning and findings were set out in detail in the Board’s Decision and it is not necessary for me to repeat them. Unless otherwise specified, I shall also adopt the Board’s abbreviations and descriptions stated in the Board’s Decision.

4.  At the applicant’s request for a hearing of the Leave Application, this court scheduled a hearing on 23 May 2025. The applicant attended the hearing in person. After having heard from him, this court informed him that the decision would be reserved, and be sent to his updated address.

Discussion

5.  A leave application operates as a ‘filtering’ process and there is no requirement or expectation to give elaborate reasons for my decision.[1] It is sufficient to state my observations after considering the Board’s Decision and the applicant’s materials adduced.

6.  In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly[2], and further to make full and frank disclosure of all material facts to be verified by an affidavit. The applicant provided no such grounds in support of the Leave Application.

7.  At the hearing, this court asked the applicant whether he had any grounds that he wished to raise. The applicant said that he wanted to stay in Hong Kong as he could not go back to his country.

8.  In the Board’s Decision, the Board refused the late filing of the appeal against the Director on account of the applicant’s failure to give any reason for his late filing of the appeal. The Board also stated that it had considered the factual basis of the applicant’s claim as outlined in the Director’s Decision, and found that the applicant had not provided any facts, which might amount to special circumstances that would render it unfair or unjust in disallowing the late filing of the applicant’s notice of appeal. In refusing the late filing of the appeal, the Board did not consider the merits of the claim.

Applicable legal principles governing

Late filing of notice of appeal to the Board under s.37ZT, Immigration Ordinance of the IO (“IO”)

9.  Notwithstanding the amendments on 1 August 2021 to s. 37ZT (2), the case law interpreting them will still apply in this case. In Re Khan Kamal Ahmed[3] and Re Qasim Ali[4] , the Court of Appeal held that under s. 37ZT (2)(b) and (3) of the IO, it was incumbent upon the Board, “in exercise of its discretion to extend time for appeal, to take the merits of the applicant’s case into account regardless of the procedural breaches of the lack of explanation therefor”: see Re Khan Kamal Ahmed at [20]. Recently, the Court of Appeal in Re Doyaoen Josephine Biba[5] dismissed the appeal against the Judge’s decision though the Board also had not considered the merits of the appellant’s late notice of appeal against the Board’s 2^nd Decision on BOR 2 risk .The Court of Appeal’s decision in that case can be distinguished.

10.  When considering whether to allow the late filing of the notice of appeal, a Board is required to take into account “any other relevant matters of fact within the knowledge of the Board” under s.37ZT (2) of the IO, which includes a duty to “take the merits of the applicant’s case into account”: See Re Khan Kamal Ahmed [17]-[20].

11.  In the present case, the Board had not assessed the merits of the applicant’s claim. Thus, it would not be apparent to an objective reader of the Board’s Decision as to whether the Board had in fact considered the merits of the applicant’s claim.

As stated in the authorities above, the role of the court in an application for judicial review is not to re-assess the non-refoulement claim but to scrutinize the Board’s decision for errors of law, procedural unfairness or irrationality. The discretion to extend time for appeal is vested in the Board. A high standard of fairness obliges the Board to undertake an examination of the merits. Thus, the Board’s failure to take into account relevant facts or circumstances is arguably renders erroneous in law, unreasonable and procedurally unfair, and did not meet the requisite high standards of fairness.

Whether to extend the time for the late filing of the Leave Application

12.  In the present case, there is a substantial delay in the Leave Application. Pursuant to O 53 r 4(1) of the Rules of the High Court, an application to apply for judicial review shall be made promptly and in any event within 3 months from the date when grounds for the application first arose. Hence, the applicant was late for almost 4 years.

13.  Before considering whether I should exercise my discretion for an extension of time, I should have regard to, among others, (i) the length of the delay; (ii) the reason for the delay; and (iii) the prospect of success of the intended challenge. The present delay is significant and inordinate. Very good reason is required to explain for the delay.

14.  Upon the court’s enquiry at the hearing for the reason for the delay, the applicant told the court that he had no idea how the delay had come about. He said that 3 days after he learnt from the Immigration officer at the Tuen Mun reporting center that he was required to file a challenge in order that he could stay in Hong Kong, he then went to file the Leave Application.

15.  While the delay in filing the Leave Application is lengthy, I should take into consideration that the Court of Appeal’s judgments in Re Khan Kamal Ahmed and Re Qasim Ali were not available until 2 and 8 April 2019 respectively (approximately 11 months before the applicant filed the Leave Application), Given the fact these decisions provide a good prospect of success in the intended judicial review, I believe that this court should exercise its discretion in grant an extension of time to allow the late filing of the Leave Application.

Conclusion

16.  In the premises, and for all the given reasons, I am of the view that the applicant’s Leave Application is reasonably arguable, thus meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676. There is a realistic prospect of success in the intended judicial review.

Orders

18.  The Form 86 be amended on the court’s own motion.

19.  Leave to the applicant to file the notice of application for leave to apply for judicial review out of time.

20.  Leave is granted to the applicant to issue a judicial review application against the Board’s Decision.

21.  The applicant shall within 14 days file and issue an originating summons, which copy together with all the relevant documents shall be served on the Board as respondent and the Director as an interested party.

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