SARFARAZ HUSSAIN v. NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1054/2020

[2025] HKCFI 3329

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1054 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 documents and oral submissions by the Applicant in open court;

1.  Form 86 be amended on the court’s own motion as follows:-

a.  The Putative Respondent’s name be amended to “Non-refoulement Claims Petition Office”.

2.  Time to file the application for leave to apply for Judicial Review be extended to 1 June 2020.

3.  Leave be granted to the Applicant to apply for judicial review in respect of the Non-refoulement Claims Petition Office’s decision dated 24 January 2019.

Observations for the Applicant:

Introduction

1.  By Form 86 filed on 1 June 2020 (the “Form 86”), the Applicant applied for leave to apply for judicial review (the “Leave Application”) against the decision of the Non‑refoulement Claims Petition Office (the “Board”) dated 24 January 2019 (the “Board’s Decision”) which dismissed the Applicant’s late filing of his Notice of Appeal (“NOA”) to the Board.

2.  As the Board was not properly named in the Form 86, I make an order to amend the Form 86 accordingly on the court’s own motion to correct the name of the Board as proposed respondent.

3.  The Applicant requested an oral hearing. The oral hearing of the Leave Application (“Hearing”) took place before me on 16 July 2020 and the Applicant attended in person.

Background

4.  The Applicant’s background, the basis of his claim and the arguments he advanced had been set out in details in the Board’s Decision. A hyperlink to the Board’s Decision is included below[1] for reference. In essence:-

(1)  The Applicant claims that he would be seriously harmed or killed if he returns to Pakistan due to a conflict with unidentified individuals by reason of the affiliation of the Applicant and his father with the Pakistan Muslim League (Noon Group) (“PML(N)”).

(2)  The Applicant arrived in Hong Kong in August 2016. A written signification of a torture claim was made on 13 August 2008.

(3)  By a Notice of Decision dated 6 June 2014 (“Prior DOI Decision”), the Director of Immigration (“Director”) rejected the Applicant’s non-refoulement claims on risk of torture risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115 (the “Ordinance”), risk of cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugee.

(4)  By a Notice of Appeal dated 24 June 2014, the Applicant appeal to the Board against the Prior DOI Decision. After a hearing on 7 November 2014, the Board dismissed the appeal and confirmed the Prior COI Decision by a decision dated 6 March 2015 (“Prior Board’s Decision”).

(5)  By letter dated 12 December 2016, the Director invited the Applicant to submit additional facts on any other all applicable grounds including right to life under Article 2 of HKBOR (“BOR 2 risk”). However, no reply was made by the Applicant.

(6)  By a Notice of Further Decision dated 3 January 2017 (the “DOI Decision”), the Director found that the Applicant has failed to establish BOR 2 risk if he is returned to Pakistan.

(7)  By a NOA filed on 10 March 2017, the Applicant appeal to the Board against the DOI Decision. The appeal was out of time for about 7 weeks. In the Board’s Decision, the Board dismissed the Applicant’s application for the late filing of the NOA.

This Leave Application is out of time

5.  The present Leave Application is out of time.

6.  Under Order 53, rule 4(1) of the Rules of the High Court, Cap 4A, an applicant has to make the Leave Application within 3 months when the grounds for the Leave Application first arose, i.e. when the Board’s Decision was made.

7.  In the present case, the Leave Application is late for over a year.

8.  The court has power to extend time for making the Leave Application. As guided by AW v Director of Immigration [2016] 2 HKC 393, the court would take into account the following criteria in considering whether to grant an extension:-

(1)  length of the delay;

(2)  reasons for the delay;

(3)  merits of the intended application; and

(4)  any prejudice to the putative respondent and to public administration.

9.  Where an application is many months out of time, leave may be refused “however strong the complaint might otherwise be”, see Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676 at 693B to C, per Litton NPJ.

10.  No application for extension of time has been made and no explanation has been provided for the delay in the Applicant’s Form 86 and his supporting affirmation despite the request to do so as stated in the Form 86. It was only at the Hearing that the Applicant requested the court to grant a time extension when I raised the issue of delay. I also asked him about the reason for the delay. The Applicant’s explanation was that he was only told about the availability of judicial review by officers of the Immigration Department in late May 2020 and he acted promptly thereafter to file the Form 86 on 1 June 2020.

11.  On any view, the length of the delay is substantial. Even if I accept the veracity of the Applicant’s explanation for the delay, I do not consider it a reasonable and valid explanation. Ignorance of the relevant legal requirement is not an excuse.

12.  However, I also note that in cases involving unrepresented claimants for non-refoulement protection, the Court of Appeal have in the recent years granted leave even though the applications were about a year out of time with no reasonable explanation for the delay, see: Re Sri-Wahyuningsih [2023] 4 HKLRD 320 (11 months out of time); and Re Suliyati [2024] 2 HKLRD 222 (13 months out of time).

13.  Notwithstanding the above, I shall consider the merits of the Leave Application.

Merits

14.  In the Board’s Decision:-

(1)  The Board held that, pursuant to s.37ZV(2) of the Ordinance, the Applicant was deemed to have received the Board’s Decision on 5 January 2017 when it was so received by his legal representative (§17).

(2)  The NOA was filed on 10 March 2017, hence it was late for about 7 weeks (§4).

(3)  Having found that the Applicant had failed to provide a reasonable explanation for the delay in lodging the NOA, the Board rejected his application for late filing of the NOA (§§8-10).

15.  I consider that it is at least reasonably arguable with realistic prospects of success that the Board has erred in failing to consider the substantive merits of the Applicant’s proposed appeal. Under s.37ZT of the Ordinance prevailing at the time, the Board was required to take into account “any other relevant matters of fact within the knowledge of the Board”. As held by the Court of Appeal in Qasim Ali [2019] HKCA 430 at §§23-26, in considering whether to allow a late filing of the NOA, it is imperative that the Board should consider the substantive merits of the appeal. It is not apparent from the Board’s Decision that it has done so.

Conclusion

16.  Even after taking into account the inevitable prejudice to good administration given the delay involved, on balance, I consider that a time extension should be granted to allow the late filing of the Form 86, having regard to the merits of the Leave Application and seriousness of the issue to the Applicant as his life could be at stake.

17.  Accordingly, leave is granted out of time on the following ground: that the Board had failed to consider the substance of the Applicant’s non-refoulement claim, which is a relevant matter of fact within the Board’s knowledge within the meaning of s.37ZT(2) of the Ordinance in force at the time.

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