BILAL FAISAL v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 3459/2019

[2025] HKCFI 5421

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 3459 of 2019

  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.  The applicant’s application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

Introduction

1.  By a “Notice of application to apply for leave for judicial review” in the prescribed Form 86 filed on 22 November 2019, 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 14 November 2019 (“Board’s Decision”) dismissing the applicant's appeal against a decision of the Director of Immigration (“Director”) dated 17 November 2016 (“Director’s Decision”) rejecting the applicant's non-refoulement claim on BOR 2 risk[1] ground under the USM[2]. The applicant’s non-refoulement claim on the grounds of risk of torture[3], BOR 3 risk[4] and persecution risk[5] under the USM had been rejected by the Director in a decision dated 2 July 2015 (“Director’s Earlier Decision”). The Board’s Decision can be viewed at the following hyperlink: -

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003459_2019_files/the_Board's_Decision.pdf

2.  In the Form 86, the applicant named the Board and the Director as the proposed respondents and the Board as the interested party. As the Board should have been the proper respondents and the Director the interested party, the Form 86 will be accordingly amended on the court’s own motion.

3.  The basis of the applicant’s claim was that, if refouled to Pakistan, he would be harmed or killed by Saleem and his two brothers after the rickshaw driven by the applicant’s stepbrother injured Saleem. 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 21 August 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.  The Leave Application operates as a ‘filtering’ process and there is no requirement or expectation to give elaborate reasons for my decision.[6] 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[7], and further to make full and frank disclosure of all material facts to be verified by an affidavit. The applicant’s Form 86 and the supporting affirmation provided no such grounds at all.

7.  At the hearing, this court asked the applicant whether he had any grounds he wished to submit in support of the Leave Application. The applicant said he had nothing to say despite having been reminded that he had not provided any written grounds.

8.  As the Courts have repeatedly stated, a finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality.[8] In the present case, the applicant’s notice of appeal to the Board was late for about 10 months and 20 days: s. 37ZT of the Immigration Ordinance (“Ordinance”). The Board was therefore statutorily required to decide as a preliminary decision without a hearing as to whether the Board should allow the applicant’s late filing of the notice of appeal. After having considered the fact that the applicant adduced no documentary evidence to support his reason for the delay, which delay the Board found to be serious and significant, and that there were no special circumstances that rendered a refusal to be unfair and unjust, the Board refused the applicant’s late filing of the notice of appeal. These are findings of fact, which the court in a judicial review will not interfere with, subject to there being any public law errors.

9.  Bearing in mind the enhanced standard that should be adopted in scrutinizing the Board’s Decision, this court should consider the relevant authorities governing a late filing of a notice of appeal to the Board under s. 37ZT of the Ordinance.

10.  Notwithstanding the amendments on 1 August 2021 to s. 37ZT (2) of the Ordinance, the case law interpreting them will still apply in this case. In Re Khan Kamal Ahmed[9] and Re Qasim Ali[10] , the Court of Appeal held that under s. 37ZT (2)(b) and (3) of the Ordinance, 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[11] 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.

11.  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 Ordinance, which includes a duty to “take the merits of the applicant’s case into account”: See Re Khan Kamal Ahmed [17]-[20].

12.  In the present case, the applicant’s appeal to the Board was only concerned with the Director’s Decision confined to his dismissal of the ground on BOR 2. The applicant had not appealed against the Director’s Earlier Decision concerning the three risks stated in [1] above. In the circumstances, the facts and findings set out in the Director’s Earlier Decision remain valid. According to the Director’s Decision, after the applicant had been invited to submit additional information on BOR 2 risk, the applicant did not provide any further information to the Director. The Director therefore assessed the BOR 2 risk entirely based on the relevant law and the same facts he had found in the Director’s Earlier Decision. In the Board’s Decision at [18], the Board had referred to the Director’s finding in relation to BOR 2. In the circumstances, it would appear that when the Board evaluated all the circumstances, it would have considered the Director’s Decision concerning the assessment of BOR 2 risk. Following the recent Court of Appeal decision in Re Doyaoen Josephine Biba, this court is satisfied that the Board correctly applied the law and observed a high standard of fairness in refusing the applicant’s late filing of the notice. The applicant has not provided any grounds, whether written or oral, to support the Leave Application. The applicant has not shown any errors of law or procedural unfairness or irrationality in the Board’s Decision. The applicant’s intended challenge to the Board’s Decision is not reasonably arguable with realistic prospects of success such that would enable this court to grant leave[12].

Orders

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

14.  The applicant’s application for leave to apply for judicial review be dismissed.

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