GULFAM MUHAMMAD v. TORTURE CLAIMS APPEAL BOARD

HCAL 3403/2019

[2025] HKCFI 4207

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 3403 OF 2019

Application for leave to apply for judicial review
NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

	consideration of the documents only; or
	consideration of the documents and the applicant being absent in open court;

1.   On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board” and the decision in respect of which relief is sought be amended to “Torture Claims Appeal Board’s decision dated 8 November 2019”.

2.   Leave granted to the applicant to apply for judicial review in respect of the Torture Claims Appeal Board’s decision dated 8 November 2019.

Observations for the applicant:

The Leave Application

1.  By way of Form 86 dated and filed on 18 November 2019, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision made by the Non-refoulement Claims Petition Office (“the Petition Office”) dated 8 November 2019, refusing his application for late filing of his appeal/petition against the Notice of Decision made by the Director of Immigration (“the Director”) dated 5 September 2017 (‘the Director’s Decision”).

2.  In fact, the decision refusing his application for late filing of his appeal/petition against the Director’s Decision was made by the Torture Claims Appeal Board (“the Board”) on 8 November 2019 (“the Board’s Decision”).  The Board’s Decision can be viewed in the following hyperlink:-

 https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003403_2019_files/the_Board's_Decision.pdf

3.  The applicant had previously made a non-refoulement claim but then withdrew the same by way of an undated written representation, which was received by the Director on 18 November 2016.  However, by way of a written request of 14 June 2017, the applicant applied to the Director to re-open his non-refoulement claim.  

4.  In reply to the applicant’s said written request, the Director sent a letter dated 13 July 2017 to request the applicant to provide further information in writing on the following:

(1)   Detailed reasons of the withdrawal of his non-refoulement claim and evidence that there has been a change of circumstances which could not reasonably have been foreseen by him when he withdrew his non-refoulement claim in November 2016, and when taken together with the material previously submitted for the claim, could increase the prospect of success of the claim; or

(2)   Special circumstances by reason of which it would be unjust not to re-open his claim, if applicable.

5.  In the same letter, the Director also informed the applicant that if the Director did not receive further information and evidence from him on or before 20 July 2017, the Director would take it that he did not have further information and evidence to submit in support of his request for re-opening his claim and his request would be assessed based on available information.

6.  However, the Director did not receive any reply from the applicant by the date of the Director’s Decision, ie 5 September 2017.

7.  By way of the Director’s Decision, the Director rejected the applicant’s application to re-open his non-refoulement claim.

8.  The applicant filed his Notice of Appeal/Petition (“the Notice”) against the Director’s Decision with the Board on 22 March 2019, when the last day for such filing was on 21 September 2017. Thus, the application to re-open the applicant’s non-refoulement claim was 18 months late and the Board had to consider whether the late filing of the Notice should be allowed.

9.  After considering the applicant’s statement of reasons and all relevant matters of fact within its knowledge, the Board was satisfied that there was no special circumstances which would make it unjust not to allow the late filing of the Notice.  The Board therefore refused the application for late filing, and did not allow the late filing of the Notice.

10.  The Leave Application is therefore in respect of the Board’s Decision in refusing the late filing of the Notice.

Amendments

11.  In Form 86, the applicant named the Petition Office as the putative respondent.  In fact, the Petition Office is just an office providing administrative and secretariat support to the adjudicators of the Board and does not have any power to determine the applicant’s appeal/petition at all.  Thus, the Petition Office should be not named as a putative respondent.

12.  The adjudicator was in fact making the Board’s decisions on behalf of the Board in his capacity as a member of the Board, not the Petition Office.  The decision refusing the applicant’s application for late filing of his appeal/petition against the Director’s Decision was made by the Board instead of the Petition Office.  Hence, the putative respondent in the Leave Application should be the Board instead.

13.  This court therefore makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board” and the decision in respect of which relief is sought to “Torture Claims Appeal Board’s decision dated 8 November 2019”.

The applicant’s case

14.  It is not necessary for this court to discuss the details of the applicant’s non-refoulement claim here as the Leave Application is only about the applicant’s challenge on the Board’s Decision in refusing his application for late filing of the Notice.

Oral hearing

15.  The applicant requested for an oral hearing of the Leave Application and the case was heard on 2 July 2025.  The applicant was absent at the hearing.

16.  By way of a letter dated 30 June 2025 (but received by this court on 3 July 2025), the applicant applied to vacate the scheduled hearing as he was suffering from Covid-19, which was supported by a medical certificate of even date.  This court therefore gave direction to refix the case for another hearing.

17.  Nevertheless, at the refixed hearing on 6 August 2025, the applicant was again absent.

18.  As held in Re Abdus Salam [2019] HKCA 1091, an application for leave to bring judicial review should not be dismissed for want of prosecution merely because the applicant failed to attend the oral hearing of the leave application.  The correct approach is to treat the applicant as having withdrawn the request for a hearing by reason of the absence at the hearing, and to proceed to determine the leave application on its merits.

19.  Thus, this court will proceed to consider the merits of the Leave Application based on the written materials before this court.

Grounds for judicial review

20.  The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).

21.  The applicant annexed a document to Form 86 with the title “Grounds on which Relief is sought”.  The contents of this document are summarised as follows:-

(1)      The applicant was unaware that the Director refused his application for non-refoulement protection on 5 September 2017 without conducting any interview with him.

(2)      He never received the Director’s Decision despite that he had never failed to report recognizance since 2012.  He was only told by an Immigration Officer in early March 2019 that his non-refoulement claim had been refused.

(3)      He only received the Director’s Decision on 21 March 2019 and he filed the Notice the next day.

(4)      The Board stated in its decision that there was no indication on the notice of the Director’s Decision whether it was sent by post or by hand.  The applicant challenged how the Board could draw the inference that it was sent by post.

(5)      The applicant challenged why it took the Director 18 months to finalize his case.  The address mentioned in paragraph 7 of the Board’s Decision was never on his recognizance form.  He had always kept the Immigration Department updated with his address.

(6)      The Board was procedurally improper and/or unfair when assessing whether to accept or not to accept the explanations provided by him.

(7)      Both the Director’s Decision and the Board’s Decision had no details of his claim.  The Director and the Board reached their decisions wrongly in assessing his non-refoulement claim.

(8)      The decisions were not reasonable and fair as required by the Wednesbury test.  His right to life should be protected.

(9)      The Board acted unreasonably and was procedurally unfair by failing to take his personal background and experience into account.  This was a clean case of unfair attitude shown by the Director which in itself is enough to render his Decision void.  In fact, the corruption and incompetency of the administration in his country is still a very serious problem.  Various human rights organizations have compiled reports on situations in his country.

(10)     He would like the Immigration Department and the Board to conduct interviews with him and at least give him one chance to explain his situation and provide them with his story before they reach a decision.

Discussion

22.  The role of the court in judicial review is not to re-assess the non-refoulement claims afresh.  The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  The court will scrutinize the Board’s decision and intervene by way of judicial review only for errors of law, procedural unfairness or irrationality (see Nupur Mst v Director of Immigration[2018] HKCA524).

23.  Thus, apart from the various grounds for the intended judicial review as advanced by the applicant, this court will scrutinize the Board’s Decision for any errors of law, procedural unfairness or irrationality.

24.  It is clear from the Board’s Decision that the Board did not consider the merits of the applicant’s appeal/petition at all.

25.  The Court of Appeal had repeatedly held that under the then section 37ZT(2)(b) of the Immigration Ordinance, Cap 115, the Board should have taken account of the merits of the appeal, because the words “any other relevant matters of fact within the knowledge of the Board” required the Board to do so (see Re Khan Kamal Ahmed [2019] HKCA 377, Re Qasim Ali [2019] HKCA 430 and Re Villarosa Rhea Limbaga [2024] HKCA 95).

26.  In other words, in failing to consider the merits of the applicant’s appeal/petition, the Board did not take account of other relevant matters of fact within its knowledge as required by the then section 37ZT(2)(b).  The Board had therefore committed an error of law in the Board’s Decision.

27.  This error of law alone is a sufficient reason for the applicant’s intended judicial review to be reasonably arguable.  It is therefore unnecessary for this court to deal with the grounds for the intended judicial review as asserted by the applicant one by one.

28.  As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the court should grant leave to apply for judicial review when the claim is a reasonably arguable claim which enjoys realistic prospects of success.  It is the view of this court that there are realistic prospects of success for the applicant’s intended judicial review in respect of the Board’s Decision and hence leave is granted to the applicant to proceed with the intended judicial review.

Conclusion

29.  For reasons aforesaid, leave is granted for the applicant to apply for judicial review in respect of the Board’s Decision.

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