Shahbaz Muhammad v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1206/2022

[2023] HKCFI 994

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1206 of 2022

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;

Order by Deputy High Court Judge To:

1.  Leave to amend the notice of application for leave to apply for Judicial Review (“Form 86”) be granted; and

2.  Leave to apply for Judicial Review refused.

Observations for the Applicant:

Introduction

1.This is the Applicant’s application by Form 86 filed on 4 November 2022 for leave to apply for judicial review of a decision dated 2 February 2018 (“the leave application”). The Director of Immigration (the “Director”) is named as the respondent and the interested party. Upon the Court’s enquiries, it was revealed that the Director had refused the Applicant’s application for non-refoulement protection by a Notice of Decision dated 2 February 2018 (the Notice”). Then the Applicant appealed to the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“the Board”) against the Notice. His appeal was dismissed by the decision of the Board dated 31 December 2018 (the “Decision”). The Applicant made no reference in the Form 86 to the Board or its Decision, but deliberately named the Director as the proposed respondent and a decision dated 2 February 2018 which is the date of the Director’s Notice as the decision in respect of which relief is sought. It is amply clear that his intention is to seek judicial review of the Notice of the Director and not the Decision of the Board.

2.In the non-refoulement context, the decision of the Board is reviewable by judicial process but not the Director’s Notice because there are established statutory procedures of appeal to the Board under section 37ZR of the Immigration Ordinance, Cap. 115 and the Applicant has invoked those procedures. At the time of the filing of the Form 86, the Director’s Notice had been superseded by the Board’s Decision. It is no longer susceptible to judicial review: Re Moshsin Ali[1]. Hence, the Applicant may apply for leave to apply for judicial review of the Board’s Decision only and not the Notice of the Director. For this reason, his leave application may be dismissed forthwith.

3.The Applicant being an asylum seeker and unrepresented, in the discharge of the high standard of fairness the Court assumes it to be its duty to consider if his leave application could be cured by suitable amendment so that the substance or the decision which the Applicant intends to seek a review of and which may adversely affect his life and liberty could be judicially reviewed. The only way this could be achieved is to make the Board’s Decision the subject matter of this leave application and the Board the proposed respondent.

4.The Decision was made on 31 December 2018. Even assuming the amendment were to take effect on the date of the Summons, the leave application if amended would have been made more than three years and ten months after the date the Decision. 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 filed more than three years and seven months out of time. Extension of time to file the leave application is required. In Po Fun Chan v Winnie Cheung[2], the Court of Final Appeal held that where an applicant is many months out of time, extension of time to apply for leave to apply for judicial review may be refused “however strong the complaint might otherwise be”. Statutory time limits are meant to be strictly observed. The delay in this case is so substantial that there is no prospect that any court could indulge or tolerate such long delay. This is precisely the type of case to which the Court of Final Appeal’s decision in Po Fun Chan v Winnie Cheung applies. Extension of time and the leave application, even if amended, may be refused on this ground alone. There is no prospect that the leave application could be cured by any amendment.

5.For the above reasons, the Applicant’s application for leave to apply for judicial review is dismissed.

Dated the 17^th day of April 2023.

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