Shafiq Muhammad v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
Read the full judgment text of HCAL 2720/2019 on BabelCite. This High Court CFI judgment was delivered on 11 July 2025.
1. This is an application by Mr Shafiq Muhammad (“Applicant”) for leave to apply for judicial review.
Cited by 1 case · Cites 12 cases
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HCAL 2720/2019 [2025] HKCFI 2919 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2720 of 2019
Application for Leave to Apply for Judicial Review Following;
Order by Deputy High Court Judge Reuden Lai:
Observation for the Applicant: Introduction 1.This is an application by Mr Shafiq Muhammad (“Applicant”) for leave to apply for judicial review. Background of the Applicant and the Claim 2.The Applicant is a Pakistani. He was born on 14 May 1987 in Kasoor, Punjab, Pakistan. He received about 13 years of education. 3.The Applicant claimed that his relatives in Pakistan would ill-treat or even kill him because of a land dispute. He claimed that his father bought a piece of land (“Land”) from a distant relative (“AN”) in 2004. In 2006, AN claimed that the Land belonged to him. It was later discovered that the documents given by AN to the Applicant’s father and registered at the land registry for the Land were not genuine. The Applicant’s family had a dispute with AN’s family and AN warned the Applicant not to harass him or a police report would be filed against him. 4.In March 2006, AN’s son (“AF”) was murdered and AN’s family blamed the Applicant for the murder. 5.In April 2006, the Applicant was attacked by the sons of AN and four unknown assailants with wooden sticks and a pistol (“Incident”). The Applicant’s friend was shot to death during the Incident but the Applicant managed to run away. On the next day, the police visited the Applicant’s home for AF’s murder. AN was also present and in front of the police, he vowed to kill the Applicant. The Applicant suspected that a police report had been filed against him for the murder of AF. 6.The Applicant took the advice of his family and hid at his uncle’s place immediately after the Incident. The Applicant’s family did not disclose his location to the police. 7.The Applicant departed Pakistan on 2 February 2007 with his own passport for Mainland China via Thailand. He sneaked into Hong Kong from the Mainland on 5 February 2007 and was arrested by the Hong Kong police on 14 January 2008. By a written signification made on 20 August 2008, he raised his non-refoulement claim under Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“NRC”). 8.The Applicant claimed that his life was in danger in Pakistan because he would be ill-treated or even killed by AN and his sons if he were to be returned there. The Director of Immigration (“Director”) assessed the NRC on the following grounds under the then unified screening mechanism (“USM”):
9.By a decision dated 7 January 2015 (“2015 DOI Decision”), the Director refused the NRC based on the above grounds. The Applicant later filed an appeal/petition to the Torture Claims Appeal Board (“Board” and “Appeal”). By a decision dated 8 October 2015 (“2015 Board’s Decision”), the Board affirmed the 2015 DOI Decision. The Board rejected and dismissed the Appeal. 10.By a letter dated 3 March 2017 (“Letter”), the Director invited the Applicant to submit information, if any, for his claim based on risk of violation of right to life as a non-derogable and absolute right under Article 2 of Section 8 of the BOR. The Applicant submitted additional grounds and facts on 16 March 2017 (“BOR 2 Claim”). By a decision dated 24 April 2017 (“2017 DOI Decision”), the Director also rejected the BOR 2 Claim. 11.The Applicant filed a notice of appeal against the 2017 DOI Decision on 22 May 2017 (“NOA”). The Board found that the NOA was late by 12 days and that the Applicant had failed to make out a case where the late filing of the NOA was justified. The Board dismissed the Applicant’s application for late filing of the NOA by a decision date 5 September 2019 (“2019 Board’s Decision”). 12.On 17 September 2019, the Applicant filed the Form 86 herein (“Form 86”) seeking leave for judicial review of the 2015 DOI Decision, the 2017 DOI Decision and the 2019 Board’s Decision. The Applicant filed his supporting affirmation on the same day (“Supporting Affirmation”). In the Form 86, the Applicant named both the Director and the Board as the proposed respondents. Legal principles applicable to judicial review 13.In a judicial review, the court does not step into the shoes of the decision makers. 14.In Nupur Mst v Director of Immigration [2018] HKCA 524 the Court of Appeal reiterated at §14(1) that:
15.In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, 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. 16.Order 53 rule 4(1) of the Rules of the High Court (“RHC”) provides that:
17.The 2015 DOI Decision was issued on 7 January 2015 and the 2017 DOI Decision was issued on 24 April 2017. The Form 86 was filed on 17 September 2019. As such, whether the Applicant intended to seek judicial review of the 2015 DOI Decision or the 2017 DOI Decision, he was seriously late. 18.The Applicant was late for more than 4 years and 5 months to seek judicial review of the 2015 DOI Decision and late for more than 2 years and 1 month to seek judicial review of the 2017 DOI Decision. These were very substantial and inordinate delays. The Applicant had not applied for time extension to file the Form 86. No explanation had been provided by the Applicant in the Form 86 or the Supporting Affirmation for his late filing of the Form 86 in respect of his intended judicial review against the 2015 DOI Decision and the 2017 DOI Decision. 19.In the Po Fun Chan case (supra), Litton NPJ opined at §52 that where an application was made many months after the time limit mentioned in order 53 rule 4 of the RHC, the judge was entitled to refuse leave, however strong the complaint might otherwise be. As such, the Applicant’s applications for leave to apply for judicial review of the 2015 DOI Decision and the 2017 DOI Decision are liable for dismissal on the ground of delay. 20.For the sake of good order and completeness, I shall also consider the merits of the Applicant’s applications before deciding on how to dispose of the matters. Discussion 21.In the Form 86, the Applicant did not put forward any ground for his intended judicial review. 22.In the Supporting Affirmation, the Applicant put forward the following grounds for his intended judicial review:
23.The Applicant exhibited the 2015 DOI Decision, the 2017 DOI Decision and the 2019 Board’s Decision to the Supporting Affirmation. No other supporting documents were produced. 24.The grounds stated in the Supporting Affirmation only concerned the 2017 DOI Decision and the 2019 Board’s Decision. They do not support the Applicant’s application for leave for judicial review of the 2015 DOI Decision. 2015 DOI Decision 25.The Applicant had appealed against the 2015 DOI Decision to the Board. The Court of Appeal had pointed out in Re: Ali Usman [2018] HKCA 955 at §21 that “this court has on many occasions held that as the decision of the Director is capable of being appealed by the appeal/petition process, where that process has been invoked (as it was here), there is no scope for review of the Director’s Decision”. 26.In this case, the Applicant had invoked the appeal/petition process in respect of the 2015 DOI Decision. He may not have the second bite of the cherry to challenge the 2015 DOI Decision twice in the name of judicial review. 27.The application for leave to apply for judicial review of the 2015 DOI Decision was made significantly out of time and without leave of the court. As I see no reasonably arguable ground for the Applicant to seek judicial review of the 2015 DOI Decision in this case, I dismiss the Applicant’s application for leave to apply for judicial review of the 2015 DOI Decision. 2017 DOI Decision 28.In the Supporting Affirmation, the Applicant claimed that he did not understand the significant of the Letter. This claim was inconsistent with his making further submissions to the Director by a letter of 16 March 2017. (§§2 and 4 of the 2017 DOI Decision) Such ground is not reasonably arguable in his intended judicial review of the 2017 DOI Decision. 29.Furthermore, the Applicant had filed the NOA in respect of the 2017 DOI Decision. Although his application for late filing had been rejected by the Board in the 2019 Board’s Decision, the Applicant had nevertheless invoked the appeal/petition process to the Board. The principle set out in Re: Ali Usman (supra) should also apply. 30.I note that the Applicant is seeking leave for judicial review of the 2019 Board’s Decision which will be dealt with below in this judgment. However, he may not have the second bite of the cherry in attempting to challenge the 2017 DOI Decision twice in the name of judicial review. 31.The application for leave to apply for judicial review of the 2017 DOI Decision was made significantly out of time and without leave of the court. As I see no reasonably arguable ground for the Applicant to seek judicial review of the 2017 DOI Decision in this case, I dismiss the Applicant’s application for leave to apply for judicial review of the 2017 DOI Decision. 2019 Board’s Decision 32.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. 33.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 22 May 2017, the pre-amendment version of section 37ZT (“Old s37ZT”) is relevant to this application. 34.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 section 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. 35.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 2019 Board’s Decision. The Board refused to allow the late filing of the NOA. 36.Subsection (2) of the Old s37ZT further provided that in deciding whether to allow late filing, the Board might only take account of:
37.The 2017 DOI Decision, which was also the notice of decision referred to in the Ordinance, was made on 24 April 2017. The Board found that the 14-day period for the Applicant to lodge the NOA expired on 10 May 2017 (§5 of the 2019 Board’s Decision). The Applicant filed the NOA on 22 May 2017. He was thus late by 12 days in filing the NOA. 38.The reasons for late filing of the NOA provided by the Applicant in section 5 of the NOA was that he only received the 2017 DOI Decision on 19 May 2017. If the Applicant received the 2017 DOI Decision on 19 May 2017, he might be within time to file the NOA on 22 May 2017. 39.At §11 of the 2019 Board’s Decision, the Board noted that the Applicant’s explanation was a bare statement without any supporting documentary evidence. The Board further noted that the DLS acknowledged receipt of the 2017 DOI Decision by a stamp or chop dated 24 April 2017. Finally, the Board found that there were no extenuating circumstances to render the refusal of the Applicant’s application for late filing of the NOA unjust or inequitable. The Board refused the application for the late filing of the NOA. 40.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. 41.In Re Khan Kamal Ahmed (supra) 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. (emphasis added) (§§18 and 20 of the judgment) 42.In §11 of the Board’s Decision, the Board set out its consideration for the late filing application. (See §39 above) 43.In considering the Applicant’s application for late filing of the NOA, the Board only considered the reasons for late filing advanced by the Applicant and concluded that the Applicant had failed to make out a case where the late filing of 12 days was justified. The Board then dismissed the Applicant’s application for late filing of the NOA. The Board did not go further to consider the merits of the Applicant’s case. (§§11-13 of the 2019 Board’s Decision) 44.In Re Qasim Ali (supra) the Court of Appeal stated that: “In our opinion, it would be unjust not to allow the late filing of a notice of appeal where the appeal is meritorious. Indeed, nothing would be more unjust.” (§25 of the judgment) 45.The following remarks of the Court of Appeal made in Re Khan Kamal Ahmed (supra) equally apply to this case:
46.It is reasonably arguable that the Board had erred in law in refusing leave for the Applicant to file the NOA out of time in this case without considering the merits of the BOR 2 Claim. Grounds raised in the Supporting Affirmation 47.The Applicant complained that the Board erred in relying on receipt of the 2017 DOI Decision by the DLS as evidence of his receiving the document. 48.The Board should know that the Applicant was no longer represented by the DLS in the BOR 2 Claim. In the 2019 Board’s Decision the Board did not refer to any evidence of the DLS forwarding or explaining the 2017 DOI Decision to the Applicant. The Board referred to the DLS (who was no longer representing the Applicant at the material times) receiving the 2017 DOI Decision to find that the same was received by the Applicant on the same day (§11(iii) of the 2019 Board’s Decision). It is reasonably arguable that the Board had taken into account irrelevant matters when deciding on the Applicant’s application for late filing of the NOA. 49.The Applicant further complained that the Board failed to give him an opportunity to elaborate his explanation for the delay. 50.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 section 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. 51.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. 52.In an application for late filing of the NOA, the Applicant had to state his reasons in section 5 of the NOA accompanying by all supporting evidence. No further elaboration would be allowed and no hearing would be held for the application. 53.This was what the Board had done by the 2019 Board’s Decision. The Board had dealt with the Applicant’s application for late filing of the NOA following the statutory provisions. I see no merits in the aforesaid complaint of the Applicant. Conclusion 54.For reasons stated above, I am of the view that the intended application for judicial review of the 2019 Board’s Decision is reasonably arguable, meeting the threshold for leave to be granted as laid down in the Po Fun Chan case (supra). 55.I note that above is not exactly how the Applicant argued this application in the Form 86 and the Supporting Affirmation. However, I bear in mind the high standards of fairness required from this court and the obligation of this court in conducting rigorous examination and anxious scrutiny on the 2019 Board’s Decision on top of argument put forward by the Applicant for his application in dealing with claims for non-refoulement protection. 56.I grant leave to the Applicant to apply for judicial review of the 2019 Board’s Decision against the Board. In accordance with Order 53 rule 5 of the RHC, the Applicant should file and serve an originating summons, naming the Board as the respondent and the Director as the interested party, within 14 days from the date of this judgment. 57.The originating summons should set out the grounds that:
Dated the 11th day of July 2025.
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
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