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

HCAL 1263/2022

[2025] HKCFI 912

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1263 of 2022

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.  Extension of time to apply for leave for Judicial Review be refused; and

2.  Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 15 November 2022 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 5 January 2021 dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 11 July 2018 (the “Notice”), refusing his application for non-refoulement protection.

Background

2.  The Applicant is a Pakistani national. He sneaked into Hong Kong on 5 December 2015 and made a non-refoulement claim on 11 July 2016. In due course, his non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism (the “USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4]. His claim was rejected by the Director’s Notice. His appeal against the Notice was dismissed by the Board’s Decision. He now seeks leave to apply for judicial review of that Decision.

3.  However, by the time his application came to be processed, this Court was informed by the Director that he had been removed. Having considered the nature of the application and issues raised, the Decision, the papers, the applicable legal principles and all the circumstances, the Court considered that the leave application may be justly determined on paper without an oral hearing.

4.  The leave application was filed 22 months and 10 days after the date of the Decision sought to be reviewed. Pursuant to section 21K(6) of the High Court Ordinance and Order 53, rule 4(1) of the Rules of the High Court, the leave application was lodged 19 months and 10 days out of time. The delay is very substantial. Extension of time to apply is required.

5.  In AW and Director of Immigration and William Lam, the Court of Appeal held that the following factors are relevant in determining whether to grant leave to file an application for leave to apply for judicial review out of time: (1) length of the delay; (2) explanation for the delay; (3) merits of the substantive application; (4) prejudice to the Applicant if leave is refused vis-à-vis that to the respondent and public administration if leave is granted; and (5) whether the application raises any questions of general public importance, and whether those questions are likely to have to be resolved by the courts in any event. Usually, the first three factors, particularly merits, are most crucial and determinative. If the sum total of these three factors are in favour of grant of extension, the court would be more relaxed in the remaining two. Conversely, if it is against the grant of extension, there is no need to consider the remaining two factors. However, it was also held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung[5] that where an applicant is many months out of time, leave may be refused “however strong the complaint might otherwise be”.

6.  The explanation for the delay given by the Applicant in his supporting affirmation dated 15 November 2022 is that he had never received the Decision and was unaware of it until he was informed by an immigration officer in early November 2022 when he went to the Immigration Department to report his recognizance. The address he stated in his supporting affirmation, his Form 86 and his Recognizance, ie Form No. 8 is the same. It is also the same address to which the Board’s covering letter dated 5 January 2021 and a copy of the Decision were sent. In other words, the Decision had been correctly addressed and sent to him by post. The delivery service of the Hong Kong Post is usually very reliable.

7.  According to his Form No. 8, the Applicant has to report to the Immigration Department bi-weekly. In the intervening period between 5 January 2021 when the Decision was sent and early November 2022 when he was first alerted by an immigration officer about the Decision, there were about 100 weeks. The Applicant would have reported about 50 times. Against such background, the Applicant’s explanation is highly incredible. The Immigration Department had been informed of the Decision at around the same time as the Applicant. Refoulement of claimants who had exhausted all available legal proceedings is certainly one of the department’s priorities to refoule. Under such circumstances, is too much of a coincident that no immigration officer had alerted him of the Decision during all these 50 reportings. The Applicant’s explanation is just a bare assertion which begs belief. The Court therefore came to the conclusion that he had no reasonable explanation for the very substantial delay. This is the type of case to which the principle in Po Fun Chan v Winnie Cheung applies. Accordingly, extension of time for the Applicant to file the leave application and the leave application are refused.

8.  The Court does not have the Applicant’s contact address in his home country. The Order and Form CALL-1 are therefore sent to the Director of Immigration with a request that the Department will use its best endeavor to forward them to the Applicant.

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