Ndumbi Paul Mulumba v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

CACV 238/2022, [2023] HKCA 847

On Appeal From [2022] HKCFI 1451

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 238 OF 2022

(ON APPEAL FROM HCAL NO 594 OF 2019)

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Before: Hon Au JA and ST Poon J in Court

Date of Hearing: 5 December 2022

Date of Judgment: 10 July 2023

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J U D G M E N T

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

A.  INTRODUCTION

1.This is an appeal by the applicant against the order of Deputy High Court Judge KW Lung (“the Deputy Judge”) in refusing to grant him extension of time and dismissed his application for leave to apply for judicial review (“the Order”).  The Deputy Judge has set out in the Form CALL-1 dated 2 June 2022 his reasons for making that decision (“the Leave Decision”) ([2022] HKCFI 1451).

2.The intended judicial review is to challenge the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 20 July 2018 (“the Board’s Decision”), dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 24 November 2016 rejecting his non‑refoulement claim.

3.After the hearing, we reserved our judgment to be handed down. This is what we do now.

B.  BACKGROUND

4.The applicant is a national of the Democratic Republic of Congo (“DRC”).  He came to Hong Kong as a visitor on 18 August 2010.  On 22 July 2011, he acquired permission to reside in Hong Kong as a dependant by virtue of marriage solemnized with a Hong Kong resident on 29 October 2010.  His limit of stay as a dependant was last extended to 20 April 2015.  On 30 June 2015, no further action was taken on his application for an extension of stay as a dependant.  A deportation order was made against him on 25 August 2015.  He raised a non-refoulement claim on 12 January 2016 on the basis that, if refouled, he would be killed or harmed by the alleged agents of the Congolese government, particularly the “ANR” and/or the Congolese army, because of his political involvement as he was a member of the youth movement of the Congolese Democratic Movement (“CDM”).

5.Factual details of the applicant’s claim were concisely summarised by the Deputy Judge at [5] of the Leave Decision as follows:

“5.   According to the applicant, he was a committee member of Congolese Democratic Movement (‘CDM’), an anti‑government organization. He was responsible for distributing the pamphlets for the party meetings. In November 2008, members from People’s Party for Reconstruction and Democracy (‘PPRD’) attacked the CDM members during a meeting. The applicant also mentioned that there were other following attacks, during which he was injured in one of them. In 2009, he was again attacked by the members of PPRD for supporting the CDM and was taken to the police station. To avoid these chaos, he came to Hong Kong in August 2010. Nothing eventful happened until 2013 when he returned and learnt that people who protested the government were killed. In January 2014, a shooting incident happened in his party’s meeting and he managed to escape. On the same night, his property was looted by the PPRD members. In the year of 2014, the applicant mentioned that there were several attacks by the government forces against his party and, out of fear, he eventually fled to and stayed in Hong Kong for protection. Details of the applicant’s claim were set out at paragraph 8 of the Director’s Decision and paragraphs 3 to 10 of the Board’s Decision as described below.”

6.By a Notice of Decision dated 24 November 2016 (“the Director’s Decision”), the Director rejected the applicant’s non‑refoulement claim.  His decision covered all applicable grounds including torture risk^[1], BOR2 risk[2], BOR3 risk^[3] and persecution risk^[4]. Taking into account all relevant circumstances, the Director considered that his non‑refoulement claim was not substantiated.

7.The applicant then appealed against the Director’s Decision to the Board.  By then, the applicant was acting in person and attended the hearing on 12 April 2018 and gave evidence.  The Director’s attendance was excused.  After considering all the evidence and materials, by the Board’s Decision, the Board dismissed his appeal as he failed to substantiate his claim on all applicable grounds.

8.In particular, in considering his claim, the Board first concluded at paragraph 23 of the Board’s Decision that it would attach no credence at all to the applicant’s claim to have entered Hong Kong in search of international protection.  The Board explained this holding as follows:

“Consideration of the claim

19. The Appellant’s claim rests on being a member of a political part called the Congolese Democratic Movement (MDCO), led by Gabriel Mokia. The Board has found some limited information about the MDCO and it is listed as one of 599 political parties in the DRC. It is not mentioned in reports one of the major political movements but Gabriel Mokia has a Twitter account describing him as the leader of the MDCO. The Board is willing to attach some credence to the Appellant’s claim to be politically active for the MDCO, without going so far as to say it is probably true.

20. In BM v SSHD [2015] UKUT 293 (IAC) the United Kingdom Upper Tribunal considered the situation on return of members of a major political party in the DRC. It found that:

‘A national of the DRC who has a significant and visible profile within APARECO (UK) is, in the event of returning to his country of origin, at real risk of persecution for a Convention reason or serious harm or treatment proscribed by Article 3 ECHR by virtue of falling within one of the risk categories identified by the Upper Tribunal in MM (UDPS Members – Risk on Return) Democratic Republic of Congo CG [2007] UKAIT 00023. Those belonging to this category include persons who are, or are perceived to be, leaders, office bearers or spokespersons. As a general rule, mere rank and file members are unlikely to fall within this category. However, each case will be fact sensitive, with particular attention directed to the likely knowledge and perceptions of DRC state agents.’

21. In the Appellant’s case the Board notes that despite his political problems the Appellant obtained a passport and left the DRC in 2010 for Hong Kong. The Appellant returned to the DRC twice in 2013 and 2014, with no problems on entry to the country or departure. On both occasions, the Appellant remained in the DRC for about two months and although he claims to have had problems while attending political gatherings the Board notes that he was not arrested or detained.

22. The Board also takes into account the delay in the Appellant’s claim for asylum. It is his claim that the problems he faced existed prior to his arrival into Hong Kong but he did not seek the protection of the Hong Kong authorities until five and a half years after his arrival, during which time he returned several times to the DRC. While the delay is not determinative of his claim (per Pill LJ in JT (Cameroon) [2008] EWCA Civ 878; SM (Section 8: Judge’s Process) Iran [2005] UKIAT 00116) the Board finds that it damages the credibility of it: section 37ZD of the Ordinance. The Board notes that it is well established by law (art.4, Directive 2004/83/EC of 29 April 2004; A B C v Staatssecretaris van Veiligheid en Justitie (2014) EUECJ C-148/13) and guidance (e.g. the UNHCR Handbook)) that a person who claims to protection has a duty to claim asylum at the earliest opportunity and to cooperate with national authorities in establishing the basis of their claim for protection. That, the Appellant did not do.

23. For those reasons, the Board attaches no credence at all to the Appellant’s claim to have entered Hong Kong in search of international protection.

24. On the basis of those findings, the Board now proceeds to assess whether the Appellant faces a real risk of any form of harm in the DRC based on his accepted profile and the reliable country information relating to the DRC, included above.

25. Taking into account the relevant COI, his profile as a low-level activist and the Appellant’s return to the DRC in 2013 and 2014, the Board finds it unlikely that the Appellant is at risk on return to the DRC.” (emphasis added)

9.Based on that holding and those observations that supported it, the Board went on to further find that:

(1)  The applicant was a low-level activist and of little interest to the authorities, which was demonstrated by the lack of interest in him on his returns to Kinshasa.  Hence, the applicant failed to establish his claim in relation to persecution risk.  See paragraphs 26 ‑ 27 of the Board’s Decision.

(2)  There was no real risk to the applicant’s right to life and no prospect that he would face torture or cruel, inhumane or degrading treatment or punishment.  See: paragraphs 28 ‑ 35 of the Board’s Decision.

(3)  There was no real risk of torture to the applicant.  See paragraphs 36 ‑ 38 of the Board’s Decision.

(4)  The applicant failed to establish Article 3 of the CAT[5] risk as:

(a)  the applicant did not claim that a consistent pattern of gross, flagrant or mass violations of human rights existed in the DRC,

(b)  he had not adduced any evidence in support of that contention, and

(c)  the Country of Origin (“COI”) did not support that claim.

See paragraph 39 of the Board’s Decision.

10.The Board thus concluded that the applicant’s appeal failed on all applicable grounds.

C.  THE LEAVE DECISION

11.On 1 March 2019, the applicant applied for leave to apply for judicial review out of time against the Board’s Decision.  By that time, he was already some five months late in making the leave application.  In both of his Form 86 and supporting affirmation, no ground of review was provided by the applicant.  He had also not provided any reason for the delay in taking out the leave to apply for judicial review application.

12.By the Leave Decision, the Deputy Judge refused to grant extension of time to the applicant and dismissed his application for leave to apply for judicial review.  His reasons were set out at [12] ‑ [19] of the Leave Decision:

“DISCUSSION

12. As mentioned in paragraph 1, the applicant’s application is late. The Court has to consider the length of the delay, the reasons for the delay, the prospect of the intended application and the prejudice to the putative respondent if extension of time is granted. Also, the Court should not grant extension for a hopeless application. See AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 and Re Adumekwe Rowland Ejike [2019] HKCA 702, §19. I shall, therefore first consider the merit of the applicant’s case.

13. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526 CA, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

14. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

15. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

‘13(1) .… …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). 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.’

16. The applicant has not raised any valid ground to challenge the Board’s Decision.

17. The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

18. There is no evidence that shows that the applicant has any realistic prospect of success in his intended judicial review.

CONCLUSION

19.  I therefore refuse to extend time for the applicant to apply for leave to apply for judicial review. Accordingly, I dismiss his application.”

D.  THE APPEAL

13.On 13 June 2022, the applicant while acting in person filed a Notice of Appeal in support of his appeal against the Leave Decision.  In his Notice of Appeal, he stated:

“… the grounds of this appeal are that the Plaintiff will face hardship if he is to return back to his home country and that the Torture Claims Appeal Board has significantly relied on the source of news which is not officially recognized, or it is simply hearsay. They have also relied on some cases which are outdated considering the dramatic changes. The lack of credible source of information has resulted in them making groundless speculation.” (sic)

14.However, since 3 November 2022, the applicant has been legally represented by Daly & Associates and by counsel.  On 7 November 2022, the applicant filed a summons (“the Summons”) together with a supporting affirmation for leave to amend the Notice of Appeal and to adduce further evidence.  The supporting affirmation was made by the applicant’s solicitor but not the applicant himself.

15.In the draft Amended Notice of Appeal, the original grounds of appeal were replaced by two new grounds of appeal, namely:

(1)  The Board erroneously rejected the applicant’s case in dismissing his claim for non-refoulement protection simply due to his low general credibility and failed to assess the applicant’s substantive propositions of fact and making findings on them looking at the applicant’s case in the round (“Ground 1”); and

(2)  Further or alternatively, the Board’s Decision is irrational and and/or procedurally improper, in that the Adjudicator, in finding that the applicant’s credibility has been damaged by his “delay” in making the non-refoulement claim, has failed to inquire into the reasons for such “delay”, and has failed to bring to the applicant’s attention the possibility that such “delay” would be used to draw adverse inference against his credibility, whilst such inference had a determinative effect on the Board’s Decision. (“Ground 2”)

16.Relevant for the present purpose, the new evidence sought to be adduced in this appeal relates to various documents which fall into the following categories[6]:

(1)  Documents that were in the hearing bundles before the Board, which include the applicant’s NCF and Records of interview and the relevant COI (“Category 1 Documents”);

(2)  The disc of the audio-recording of the hearing before the Board, with an unofficial transcript prepared by the applicant’s solicitor (“Category 2 Documents”);

(3)  Copy of (a) the applicant’s passport and visa labels showing that the applicant was remaining in Hong Kong on the strength of a valid dependant visa from 22 July 2011 to 20 April 2015, (b) Certificate of Imprisonment showing that he was imprisoned prior to and after the expiry of his visa until 5 September 2015, and the Internal Memo confirming that he was immediately transferred to Castle Peak Bay Immigration Centre (“CIC”) after discharge from prison pending deportation, and (c) a letter from the Immigration Department dated 6 November 2015 showing that the applicant had attempted to make a non-refoulement claim on 5 November 2015 which was not accepted due to procedural irregularity. (“Category 3 Documents”).  These documents show the following relevant chronology from the applicant’s first arrival in Hong Kong to the time he lodged the non‑refoulement claim:

18 August 2010	Applicant first entered Hong Kong.
23 October 2010	Applicant came to Hong Kong again and permitted to remain until 6 November 2010.
29 October 2010	Applicant married a Hong Kong resident and resided in Hong Kong.
22 July 2011	Applicant was granted a dependent visa.
8 June 2012	Applicant’s dependent visa was renewed until 20 April 2015.
30 December 2013	Applicant left Hong Kong and arrived in Kinshasa.
8 January 2014	Applicant arrived in Hong Kong from Congo.
16 January 2014	Applicant left Hong Kong and arrived in Congo.
9 February 2014	Applicant left Congo and arrived in Hong Kong.
August 2014	Applicant left Hong Kong and arrived in Congo.
23 September 2014	Applicant left Congo and arrived in Hong Kong.
7 January 2015 - 5 September 2015	Applicant was imprisoned for Convicted Fraud.
20 April 2015	Applicant’s dependent visa expired.
25 August 2015	Deportation Order issued against the applicant.
5 September 2015 - January 2016	Applicant discharged from prison and remanded in CIC.
5 November 2015	Applicant attempted to lodge a non‑refoulement claim while in detention in CIC but was not accepted by the Director.
12 January 2016	Non-refoulement claim raised by the applicant by way of written representation.
26 January 2016	Applicant released from CIC.
31 March 2016	NCF filed with legal representation.

(4)  Documents relating to the applicant’s legal aid application after the Board’s Decision and the letter refusing his legal aid application (“Category 4 Documents”).

17.At the beginning of the hearing of this appeal, we indicated to Mr Ip, counsel for the applicant, that the new evidence would be considered on a de bene esse basis.  At the end of the hearing, we allowed the Summons and gave leave to the applicant to amend the Notice of Appeal and to adduce the new evidence.  We will explain later the reasons for allowing the Summons.

E.  DISCUSSION

E1.    Legal Principles

18.The relevant legal principles governing appeals in non‑refoulement cases are set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

19.In particular, the Court of Appeal has repeatedly emphasised that the role of the court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  While the court in non-refoulement claim cases will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board.  Assessment of evidence and COI materials, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director).  The court will not intervene by way of judicial review unless there are errors of law, procedural unfairness or irrationality in the decision of the Board.  See Nupur Mst v Director of Immigration, supra, at [14(1)]; Re Md Shohel Sheak [2018] HKCA 714 at [13] and Re Limbu Birkhaman [2019] HKCA 50 at [11].

20.Further, an appeal against the refusal of leave by a judge in the Court of First Instance is not an 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 determining an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse that decision if an appellant can demonstrate that the judge has made errors of law or failed to take into account of relevant matters already placed before the court or was otherwise plainly wrong.  See Nupur Mst v Director of Immigration, supra, at [14(2)] and United Muslim Association of Hong Kong v Yusuf Yu [2018] 4 HKLRD 22 at [38] and [39].

21.Bearing in mind the legal principles above, we will turn to consider the grounds of appeal.

E2.    Grounds 1 and 2

22.These two grounds can be conveniently considered together.  It is plain that the fundamental and central complaint under both Grounds 1 and 2 is that the Board’s Decision was tainted by procedural irregularity as it had taken into account what it regarded as the applicant’s 5 ½ year‑delay in lodging his non-refoulement claim in forming its view on the general credibility of the applicant.  This, Mr Ip contends, is unfair to the applicant (and therefore procedurally irregular) as the Board had never asked the applicant for any explanation for the apparent delay nor had it drawn to the applicant’s attention that the Board would draw adverse inference as to his credibility in the absence of any such explanation.

23.As mentioned before, in his Form 86 and supporting affirmation, the applicant raised no ground in support of the intended judicial review to challenge the Board’s Decision.  These two grounds of appeal (which also amount to grounds seeking to challenge the Board’s Decision) are therefore new grounds and would not show why the Deputy Judge was wrong in making the Leave Decision.  However, we appreciate that as the applicant was acting in person before the Deputy Judge, and the existence of these two potential grounds of challenge may not be apparent to a lay person, on an exceptional basis and in the interest of justice, we are prepared to consider them in this appeal.

24.For the following reasons, we agree that these two grounds are reasonably arguable for the purpose of seeking to judicially review the Board’s Decision.

25.As summarized in [8] ‑ [10] above, it is plain that the Board did take into account the applicant’s 5 ½ year delay in lodging his non‑refoulement claim as one of the factors in finding that there was no credence in the applicant’s claim that he came to Hong Kong to seek protection[7].  The Board then premised on that finding further concluded (together with the consideration of other matters) that the applicant had failed to establish the non-refoulement claim under all the available grounds.  In the premises, the factor that the applicant had delayed in making the non-refoulement claim did constitute a material factor in the Board’s Decision.

26.However, the unofficial transcript of the hearing before the Board[8] does appear to show that the Board had not at the hearing asked the applicant for any explanation for his long delay in making the non‑refoulement claim.  The transcript further shows that the Board had never even mentioned about the issue of the long delay at the hearing.

27.In the circumstances, it is reasonably arguable that, if the applicant had been asked and if he was able to provide any reasonable explanations for the delay, it cannot be said that the Board would have in any event arrived at the same conclusion as it did in the Board’s Decision.

28.In this respect, Mr Ip has submitted that there are “clearly possible reasons” which could explain the applicant’s delay.  For example, counsel says it was not legally open to the applicant to lodge a non-refoulment from 2010 when he first arrived in Hong Kong to 20 April 2015 as he was lawfully permitted to stay and remain in Hong Kong under respectively the visitor visa and dependant visa.  Counsel further says for the period thereafter, the applicant might have been imprisoned because of the deportation order and had difficulties in making the claim earlier.  These possible explanations, Mr Ip reiterates, are supported by the Category 3 Documents.

29.In relation to these purported explanations, this court notes that even now, the applicant has not made an affirmation deposing that these are in fact the reasons why he had not been able to lodge a non-refoulement until November 2015.[9]  There is also no evidence to suggest that the applicant had indicated anything to that effect in the NCF or interview before the Director.  In the premises, they are at the present no more than counsel’s own speculated explanations.

30.On the other hand, we appreciate that this is an appeal against the refusal to grant leave to apply for judicial review, and that before these new grounds were introduced, the applicant had been acting in person.  In the premises, and in light of the requirements of high standards of fairness and anxious scrutiny on the part of the Board in assessing the applicant’s claim, we are prepared to accept for the present purpose that it is reasonably arguable on an ex parte basis (and we put no higher than that) that the Board’s apparent[10] failure to mention about the delay and ask the applicant for any explanation for the delay amounted to material procedural unfairness in arriving at the Board’s Decision.

31.This is so as the Board took into account the applicant’s apparent long delay in lodging the non-refoulement claim in reaching its holding that it would attach no credence to the applicant’s assertion that he came to Hong Kong to seek protection.  Based partly on this holding, the Board then further reached its various findings in the Board’s Decision to reject all the applicable grounds under the non-refoulement claim. In the premises, once this underlying holding may arguably be said to be tainted by procedural unfairness as explained, those other findings in the Board’s Decision are also subject to challenge by way of judicial review.

32.In relation to the applicant’s out of time application for leave to apply for judicial review, as submitted by Mr Ip, those Category 4 Documents also appear to show that the applicant’s said delay could be related to his legal aid application[11]. Mr Ip then submits that if this period of the legal aid application is discounted, the applicant was only six weeks late in taking out the application.

33.It is well established that application for legal aid per se generally does not amount to a good reason for the delay in taking out an application for leave to apply for judicial review (see Re Thomas Lai [2014] 6 HKC 1 at [48]).  However, it does appear that the Judge’s reason in refusing to extend time to the applicant to apply for leave to apply for judicial review is mainly premised on the lack of merits of the judicial review[12].  In the circumstances, and given our above view that there is a reasonably arguable basis to challenge the Board’s Decision on the ground of procedural unfairness, it is open to this court to extend the time to the applicant to apply for leave to apply for judicial review.

34.For all these reasons, we find that Grounds 1 and 2 are reasonably arguable to challenge the Board’s Decision for procedural irregularity, and thus leave should be granted to the applicant to apply for judicial review, despite the delay in his taking out of the leave application.  In the premises, the appeal should be allowed on these two grounds.

35.For the same reasons, the new grounds of appeal in the draft Amended Notice of Appeal are reasonably arguable and for the interest of justice, the new evidence should be admitted to support those grounds. Hence, we allowed the Summons.

36.At the same time, we would make the following further observation concerning Ground 1.

37.Under this ground, Mr Ip argues that the Board erred in law in rejecting the applicant’s claim solely due to his low general credibility.  It is counsel’s contention that, despite the Board’s view on the applicant’s general credibility, it was still required in law to specifically assess each and every one of the applicant’s substantive and material propositions of fact made in support of his claim that was set out at paragraphs 3 ‑ 8 of the Board’s Decision[13], and make findings on each of them individually.  In support of this submission, Mr Ip relied on MS v Torture Claims Appeal Board & Anor [2021] HKCA 979 at [2] ‑ [24].

38.In MS, the applicant, who was legally represented and present at the hearing before the Board, claimed to be suffering from headaches but failed to attend many medical examinations scheduled for him and refused to give evidence during the hearing.  In the absence of oral evidence from the applicant, the Board came to the finding that it was:

“unable to determine issues relating to his general credibility; and in the circumstances, the Board was unable to determine which, if any, of the past events which the claimant says occurred, and his claimed past experiences, actually occurred. In the circumstances, the Board is unable to establish, even to the low standard applicable, if there is a real risk that the claimant would suffer the ill-treatment he claims to fear, if he is refouled to Pakistan. On the totality of the evidence, the claimant has failed to establish, even to the low standard required, that there is a real chance, that he will suffer ill-treatment of any sort if he is refouled to Pakistan.” (emphases added)

39.It was under that specific factual context that G Lam JA (citing Re Hidayah [2018] HKCA 595 at [15]) made the observations that it was reasonably arguable that the Board in that case “erred in simply rejecting the applicant’s case due to his low general credibility and the lack of opportunity to test his credibility further through oral examination”[14].

40.Accordingly, MS and Re Hidayah are cases where the Board was clearly “unable to test a claimant’s credibility by questioning him at the hearing” and concluded that “it cannot come to any findings on the claimant’s case which depends on his credibility”.

41.In this respect, we wish to highlight the following in the present case:

(1)  The applicant did give evidence before the Board, and the unofficial transcript shows that at the hearing, the Board did ask the applicant specifically the details as to the incidents about the problems and various attacks he said to have experienced in Congo[15].

(2)  Other than considering the general credibility of the applicant, the Board at paragraphs 19 ‑ 23 of the Board’s Decision indeed looked into and considered specifically other matters that related to these various complained incidents which the applicant relied upon to support the non-refoulement claim before coming to the conclusions that the applicant had failed to establish the underlying applicable grounds in support of the claim.

42.However, given that we are to grant leave to the applicant to apply for judicial review against the Board’s Decision under Grounds 1 and 2, we do not think it is appropriate for us to say anything further as to whether, with the above observations, the present case is distinguishable from MS and Re Hidayah.  This question should be left for the judge hearing the substantive judicial review to determine after hearing full submissions from both sides and with the benefit of all the relevant evidence.

F.  DISPOSITION

43.For the above reasons, we will allow the appeal, set aside the Order, and make the following orders:

(1)  The applicant shall file the Amended Notice of Appeal within five days of this judgment;

(2)  Extension of time be granted to the applicant to apply for leave to apply for judicial review;

(3)  Leave be granted to the applicant to amend the Form 86 to set out Grounds 1 and 2 only as the grounds of judicial review and to file the Amended Form 86 within five days of this judgment; and

(4)  Leave to apply for judicial review be granted to the applicant on the basis of Grounds 1 and 2 as the grounds of judicial review.

44.As the Board (as the Putative Respondent) and the Director of Immigration (as the Putative Interested Party) have not taken part in this appeal, and the appeal is only allowed on the basis of the new grounds introduced in the appeal, we further make no order as to costs in the Summons and the appeal.