Case Document

100%Judiciary

HCAL 196/2020

[2025] HKCFI 745

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 196 of 2020

BETWEEN
	Ahmed Nisar	Applicant
	and
	Torture Claims Appeal Board / Non-Refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

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 Reuden Lai:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.This is an application by Mr Ahmed Nisar (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 24 January 2019 (“Board’s Decision”) when the Board refused the Applicant’s application for late filing of a notice of appeal against the decision of the Director of Immigration (“Director”) dated 27 January 2017 (“DOI Decision”) in refusing the Applicant’s claim for non-refoulement protection (“Claim”).

Background of the Applicant

2.The Applicant is a Pakistani. He was born on 1 January 1975 in District Attock, Punjab, Pakistan. He had worked as a cook and a labourer.

The Claim

3.The Applicant claimed that his cousins from his paternal aunt (“Cousins”) were criminals and murderers. The Applicant’s family had been the target of Cousins’ enmity for some time, but he did not know how it started.

4.The Applicant claimed that Cousins might have ordered three men to throw sand in his eyes and stab him with knives when he was just a teenager (“Assault Incident”). He further claimed that Cousins had murdered his relatives, including the Applicant’s brother (“Brother”) in April 2006 because Brother slapped one of them.

5.In late 2006, the Applicant’s family fled from their home to avoid Cousins. The Applicant fled to Karachi, where he stayed peacefully for around 5 to 6 years. The Applicant sometimes went back to his home village to visit Brother’s grave but he was monitored by the police each time he went back. The Applicant claimed that this amounted to harassment and the police did so on the order of Cousins.

6.The Applicant also claimed that in around 2011 or 2012, Cousins murdered Zaida and Anwar Khan, family members of his paternal uncle’s daughter, because they envied the success of Anwar Khan. After the murders, the Applicant decided to flee the country.

7.The Applicant claimed that he would be harmed or killed by Cousins if he were returned to Pakistan.

Procedural history

8.The Applicant arrived in Hong Kong on 13 March 2013 illegally. He was arrested on 20 April 2015. By a written representation of 22 April 2015, the Applicant lodged the Claim. While the Claim was being processed, the Applicant was convicted of multiple offences in Hong Kong.

9.The Director had considered the Claim on all applicable grounds under the unified screening mechanism (“USM”), namely:

(a)  risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Ordinance”);

(b)  risk of violation of right to life as a non-derogable and absolute right under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“BOR”);

(c)  risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the BOR; and

(d)  risk of persecution with reference to the non-refoulement principle contained in Article 33 of the 1951 Convention relating to the Status of Refugees.

10.By the DOI Decision, the Director refused the Claim. Notice of decision (“NOD”) was sent to the Applicant through Duty Lawyer Service on 27 January 2017. The Applicant applied to appeal/petition to the Board (“Appeal”). On 15 January 2018, the Applicant filed a Notice of Appeal/Petition for Non-refoulement Claim dated 11 January 2018 (“NOA”). By a letter dated 15 January 2018, the Director reminded the Applicant that the NOA was late and invited the Applicant to complete section 5 of the NOA entitled “Application for Late Filing of Notice of Appeal/Petition”. On 25 January 2018, the Applicant filed another copy of the NOA with section 5 duly completed.

11.By the Board’s Decision, the Board refused the Applicant’s application for late filing of the NOA.

12.On 20 January 2020, the Applicant filed the Form 86 herein dated 27 December 2019 (“Form 86”) seeking leave for judicial review of the “DOI Decision”. On 20 January 2020, the Applicant also filed his supporting affirmation affirmed on 3 January 2020 (“Supporting Affirmation”) in which he wrote: “judicial review against my decision of torture claim appeal board.”

13.From the Supporting Affirmation, it is clear that the Applicant intended to seek judicial review against the Board’s Decision (instead of the DOI Decision) in this application. I therefore proceeded with this application on the basis that the Board’s Decision is the subject decision for the Applicant’s intended judicial review application.

14.Order 53 rule 4(1) of the Rules of the High Court (“RHC”) provides that:

“An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made.”

15.The Board’s Decision was issued on 24 January 2019. As such, the Applicant should have filed the Form 86 latest on 24 April 2019. The Form 86 was filed on 20 January 2020 and it was late.

16.No application for extension of time to file the Form 86 was made by the Applicant.

17.At the court hearing of 14 January 2025 (“Court Hearing”), the Applicant explained that the delay was due to his being kept in detention. It is noted that the Applicant’s address stated in the Form 86 and the Supporting Affirmation was at the Stanley Prison.

18.In considering whether to extend time for applying for leave for judicial review, the court shall have regard to, inter alia, (i) the length of the delay; (ii) explanation for the delay; (iii) merits of the substantive application; (iv) prejudice; and (v) question of general public importance. (Re Thomas Lai [2014] 6 HKC 1; and AW v Director of Immigration & anor CACV 63/2015)

19.In the AW case (supra), the Court of Appeal pointed out in §26 of the judgment that: “Whenever there is a failure to act promptly or within three months, there is “undue delay”.” The Applicant was late for more than 8 months in filing the Form 86. This delay was no doubt an “undue delay”. I am of the view that the delay was substantial and inordinate.

20.The Applicant had 3 months from the date of the Board’s Decision to apply for leave for judicial review. Bearing in mind that the Appeal was rejected by the Board because he was late in filing the NOA, the Applicant should be more alert to the time limit for challenging a decision in court. The fact that the Applicant was in detention is not a satisfactory explanation for a delay for more than 8 months. He might seek assistance from the welfare officer of the Correctional Services Department (“CSD”) to file the Form 86 for him. In fact, this was what eventually happened in this case.

21.As merits of the intended judicial review is a significant matter for consideration, I shall consider the merits of the Applicant’s application before deciding on how to dispose of the matter. I note that the Court of Final Appeal had pointed out in Po Fun Chan v Winnie Cheung (2007) HKCFAR 676 at 693 B-C that where an application was many months out of time, leave might be refused “however strong the complaint might otherwise be”.

The Board’s Decision

22.Under section 37ZS(1) of the Ordinance, a person who wishes to appeal against a decision of the Director rejecting a non-refoulement claim, must file with the Board a notice of appeal within 14 days after notice of decision is given to that person, unless late filing of the notice is allowed by the Board under section 37ZT(3) of the Ordinance.

23.The Applicant did not bring the Appeal within the 14-day period prescribed by section 37ZS(1) of the Ordinance. Under section 37ZT of the Ordinance, the Board had to decide, as a preliminary decision without a hearing, whether to allow the application for late filing of the NOA.

24.The reasons for late filing of the NOA provided by the Applicant were that:

(1)  when the NOD was delivered to him, he was in custody in the Single Cell Loss of Confinement Special Unit (“Special Unit”) of the CSD;

(2)  there was no mail delivery, so he did not receive the NOD until he left the Special Unit;

(3)  he was not sure on what date he was given the NOD;

(4)  he did not have any paper to show the situation in the Special Unit; and

(5)  he did not speak or understand English and had no translator until he was at the Immigration Department.

25.The Applicant adduced no documentary evidence in support of his application for late filing of the NOA.

26.The Board found that the Applicant’s delay was serious and significant. The Board also found that the reasons offered by the Applicant could not explain why he was late by 11 months. In other words, the reasons offered by the Applicant could not justify his serious and significant delay. The Board also found that there was no basis for finding that it would be unjust not to allow the late filing of the NOA. It therefore refused the application for the late filing of the NOA.

Legal principles applicable to judicial review

27.In a judicial review, the court does not step into the shoes of the decision makers.

28.In Nupur Mst v Director of Immigration [2018] HKCA 524 the Court of Appeal reiterated at §14(1) that the court should not usurp the role of the Board and would not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.

29.In Po Fun Chan v Winnie Cheung (supra), the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be reasonably arguable claim which enjoyed realistic prospects of success.

Discussion

30.In the Form 86, the Applicant did not put forward any grounds for his intended judicial review.

31.In the Supporting Affirmation, the Applicant only stated: “judicial review against my decision of torture claim appeal board.” He did not produce any supporting document to the Supporting Affirmation.

32.Section 37ZT of the Ordinance which deals with late filing of notice of appeal has been amended on 1 August 2021. As the NOA was filed on 15 January 2018, the pre-amendment version of section 37ZT (“Old s37ZT”) is relevant to this application.

33.Subsection (1) of the Old s37ZT provided that if a notice of appeal was filed after the expiry of the 14-day period referred to in sections 37ZS(1) of the Ordinance, it had to include an application for late filing of the notice which had to include a statement of the reasons for late filing of the notice accompanied by all available evidence relied on in support of the reasons. This was done by the Applicant when he re-submitted the NOA on 25 January 2018.

34.Subsection (2) of the Old s37ZT provided that the Board had to decide as a preliminary decision without a hearing whether the Board allowed the late filing of the NOA. This was what the Board had done by the Board’s Decision. The Board refused to allow the late filing of the NOA.

35.Subsection (2) of the Old s37ZT further provided that in deciding whether to allow late filing, the Board might only take account of:

(a) the statement of reasons stated in the application for late filing of the notice of appeal and any accompanying documentary evidence relied on in support of those reasons; and

(b) any other relevant matters of fact within the knowledge of the Board.

36.The 3-stage approach alluded to in The Secretary of State for the Home Department v Begum (2016) EWCA Civ 122 (3 March 2016) in dealing with late filing of notice of appeal in non-refoulement claim was affirmed by the Court of Appeal as applicable in Hong Kong in Re Khan Kamal Ahmed [2019] HKCA 377 and Re Qasim Ali [2019] HKCA 430.

37.The Board following the principles and methodology set out in the Begum case found that a delay of about 11 months in filing the NOA was a serious and significant failure to comply with the rules. The Board did not find the Applicant’s reasons for late filing acceptable to explain why he filed the NOA about 11 months late and in all the circumstances, the Applicant would have no good reasons for the breach. The Board evaluated all the circumstances in this case and arrived at the conclusion that it was fair and just to refuse the Applicant’s application to file appeal out of time. (§§17-19 of the Board’s Decision)

38.In Re Khan Kamal Ahmed the Court of Appeal pointed out that as the last of the 3-stage enquiry alluded to in the Begum case, where there was a serious or significant breach for which no good reason was given, the decision maker moved to evaluate all the circumstances of the case with a view to dealing justly with the application. 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 or the lack of explanation therefor. (§§18 and 20 of the judgment)

39.Other than considering the Applicant’s explanation for late filing of the NOA, the Board stated in §20 of the Board’s Decision 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 Notice of Appeal.” (Emphasis added) As such, the Board had also considered the merits of the Applicant’s case in deciding to refuse late filing of the NOA.

40.No proper ground for his intended challenge was stated in the Form 86 and/or the Supporting Affirmation. The Applicant did not provide any particulars or specifics as to how the Board had erred in the Board’s Decision, or in what way was the Board’s Decision unfair or unreasonable or that the Board had acted procedurally unfair or irrational, or how did the Board take into account irrelevant matters or fail to take into account relevant matters.

41.In this case, the court does not detect any error of law in the Board’s Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Board’s Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. The proposed judicial review is not reasonably arguable and has no realistic prospects of success.

Conclusion

42.The Form 86 was filed out of time without leave of the court and without good explanation for the delay. Having considered the Board’s Decision with rigorous examination and anxious scrutiny, as I do not find any error of law or procedural unfairness or any failure to apply high standards of fairness in the Board’s Decision, and as I am not satisfied that the Applicant’s intended judicial review is reasonably arguable with realistic prospects of success, I accordingly dismiss this application for leave to apply for judicial review.

Dated the 21^st day of February 2025.

( Allen LEE )
for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or the Applicant’s solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicants on 21/2/2025 Ahmed Nisar Applicant’s ref. no: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 21/2/2025 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 9931/18/1/204/P1918 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 538/16 (Formerly RBCZ 11223/15) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)