RE MUHAMMAD ILYAS

CACV 293/2023, [2026] HKCA 1307

On appeal from [2023] HKCFI 2284

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 293 OF 2023

(ON APPEAL FROM HCAL 3022/2018)

-----------------------------------

-----------------------------------

___________________

J U D G M E N T

___________________

Hon Barma JA (giving the Judgment of the Court):

1.  This is an appeal against the decision of Deputy High Court Judge To (“the Judge”) given on 11 September 2023[1] (“the Leave Decision”) refusing to grant leave for the applicant to apply for judicial review out of time. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”) dated 27 September 2016 (“the Board’s Decision”) refusing the applicant’s application for late filing of a notice of appeal (“NoA”) against the decision of the Director of Immigration (“the Director”) dated 17 May 2016 refusing to allow the applicant to re‑open his non-refoulement claim (“the Director’s Decision”).

2.  The procedural and factual background to this case and the Board’s reasons in reaching the Board’s Decision have been set out therein and summarised by the Judge in the Leave Decision at [1]-[10], which will not be repeated.  

3.  The applicant did not request for an oral hearing for the leave application.  After considering the documents filed by the applicant, the Judge dismissed the application for the reasons stated at [11]-[16] of the Leave Decision.

Appeal to this court

4.  By a Notice of Appeal dated 19 September 2023, the applicant contended, inter alia, that the Leave Decision was “not correct” and that the Board’s Decision contains “many error[s]”.

5.  In breach of the directions by the Registrar of Civil Appeals, the applicant failed to lodge his written submissions.  He is therefore deemed to have abandoned the right to rely on written submissions in the present appeal.

6.  The applicant did not request an oral hearing and consented to the appeal being disposed of on paper by the court.  We will accordingly deal with the appeal on paper on the basis of the materials already filed with the court.

Discussion

7.  As this court has often stated, an appeal to the Court of Appeal is not a fresh application for judicial review.  It is necessary to identify some error on the part of the judge that would justify this court in intervening: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.  An appeal is not the occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but were not raised before the judge.  In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and the court will only reverse that decision if an appellant could demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

8.  By the Board’s Decision, the Board refused the applicant’s late filing of the NoA after considering the reasons proffered by the applicant for the delay. 

9.  Section 37ZT(3) of the Immigration Ordinance (Cap 115) (“the Ordinance”) provides that the Board may allow the late filing of the NoA if the applicant provided sufficient evidence in writing to satisfy the Board that (i) he had exercised all due diligence to file the NoA within the prescribed time; and (ii) his failure to do so was due to circumstances beyond his control.  For the reasons set out in the Board’s Decision, the Board concluded that there were no special circumstances which would support or justify the late filing of the NoA by the applicant.

10.  However, regardless of procedural breaches committed by the applicant and the lack of adequate explanation therefor, the Board, in exercise of its discretion to extend time for appeal, is obliged to consider the merits of the applicant’s claim.  See Re Khan Kamal Ahmed [2019] HKCA 377 at [20]; Re Qasim Ali [2019] HKCA 430; Re Castillo Raquel Adona & anor [2022] HKCA 1053.

11.  In the present case, it appears that the Board in its Decision did not expressly indicate that it had undergone an exercise of examining the merits of the applicant’s claim, nor has it indicated that it has had regard to documents or information submitted by the applicant in connection with the matters considered by the Director in his decision.  See Re Sandhu Vinny [2023] HKCA 1261 at [31].  At most, the Board at [17] of its Decision stated that:

“There were no other matters known to me or revealed by the factual basis of the [applicant’s] claim, which might amount to special circumstances, and which might make it unjust not to allow the late filing of the [NoA].” (emphasis added)

12.  We are of the view that the Board could not be said to have duly and sufficiently considered the merits of the applicant’s claim, if at all, nor did the Judge address this issue in the Leave Decision.  On plain reading of the Board’s Decision, it appears that the Board has fallen short of the requirements as set out in Re Khan Kamal Ahmed and Re Qasim Ali.

13.  However, such failure does not automatically lead to the grant of leave to the applicant to apply for judicial review against the Board’s Decision.  The question for this court is, whether, had the Board considered the merits of the intended appeal pursuant to Re Qasim Ali and section 37ZT(3) of the Ordinance, it would have in any event and inevitably concluded that the said intended appeal was unmeritorious.  See Re Castillo Raquel Adona at [21]-[24]; Re Sandhu Vinny at [27].  

14.  The intended appeal to the Board in this case was against the Director’s Decision, which refused the applicant’s request to re-open his non-refoulement claim (which was treated as withdrawn) by reason of his failure to return a completed Supplementary Claim Form (“SCF”) within the required time period.  

15.  The Director’s Decision did not involve an assessment of the substantive merits of the applicant’s non-refoulement claim based on the 3 applicable grounds (i.e. BOR 2 risk[2], the BOR 3 risk[3] and the persecution risk[4]) then available to him.  The findings and discussion therein pertained only to factual findings relevant to the procedural faults committed by the applicant in failing to return his SCF. 

16.  We have scrutinised the Director’s Decision and we do not find any aspects of it which may be said to be Wednesbury unreasonable. Accordingly, we are of the view that had the Board considered the merits of the intended appeal against the Director’s Decision, it would have in any event and inevitably concluded that the said intended appeal was unmeritorious.

17.  For these reasons, the Judge’s refusal to grant leave for the applicant to apply for judicial review by the Leave Decision cannot be said to be plainly wrong. 

18.  There is therefore no merit in the present appeal, and it is accordingly dismissed.