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

HCAL 655/2020

[2025] HKCFI 3879

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 655 of 2020

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 from the Applicant in open court;

Order by Deputy High Court Judge (Non-refoulement Claims) YW Hew:

The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

Introduction

1.By a Form 86 filed on 15 April 2020 (“Form 86”), and an affirmation also filed on 15 April 2020 (“Affirmation”), the Applicant sought leave to commence a judicial review regarding a decision of the Torture Claims Appeal Board (“TCAB”)/Non-Refoulement Claims Petition Office (“NRCPO”) dated 14 July 2017[1] (“the TCAB Decision”).

2.I will use the abbreviations and definitions from the TCAB Decision unless otherwise specified herein.

3.The Applicant appeared at the oral hearing of his application and made some submissions which I will set out below.

Background

4.This is set out in the TCAB Decision, in particular at Paragraphs 1 to 11. While I will not repeat the contents thereof, in summary:

a.  The Director made a decision on 19 August 2016 not to re-open the Applicant’s non-refoulement claim (“Director’s Decision”);

b.  The Applicant then petitioned/appealed to the TCAB/NRCPO; and

c.  The TCAB/NRCPO handed down the TCAB Decision on 14 July 2017 which dismissed the Applicant’s appeal/petition and confirmed the Director’s Decision.

Legal Principles

5.An applicant, even one acting in person, is required to identify the grounds of judicial review clearly and succinctly in the Form 86, and to fully and frankly disclose all material facts and potential legal answers (Ho Loy & Another v Director of Environmental Protection, unrep.  HCAL 21/2015, 22 December 2016, Chow J. (as he was then) at §142; Leung Kwok Hung, unrep., HCAL 83/2012, 28 September 2013, Lam J. (as he was then) at §35; Begum Khadija [2018] HKCA 571; Khan Kamran [2020] HKCA 380). 

6.It is trite that the role of the Court in a judicial review is not to provide a further avenue of appeal, and that the Court should not usurp the role of the TCAB/NRCPO which is (and together with the Director are) the primary decision‑makers.  The assessment of evidence, COI materials, and credibility, risk of harm, state protection and viability of internal relocation are primarily within the province of the TCAB/NRCPO and the Director, which are entitled to make evaluations based on the evidence available and to decide the weight to be given to them.  While the Court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of the issue at hand, 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 TCAB/NRCPO.  (Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; Nupur Mst v Director of Immigration [2018] HKCA 524; Re Kartini [2019] HKCA 1022; Re Rupinder Singh [2021] HKCA 886). 

7.In order for me to give leave for judicial review, I have to be satisfied that there is an intended ground of review which is reasonably arguable, which is one that enjoys a realistic prospect of success (Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676).  As a leave application of this sort is meant to be a filtering process, I am not expected to give elaborate reasons for my decision (see Re Zunariyah [2018] HKCA 14, at §23). 

8.Given RHC O. 53 r. 4(1) and s. 21K(6) High Court Ordinance (CAP. 4A),where an Applicant applies for leave to apply for judicial review more than 3 months after the decision:

a.  The failure to apply within 3 months constitutes “undue delay”.  To justify an extension of time in which to apply for leave, the Applicant must show “good reason” to extend time.  In deciding this, certain factors that are likely to be significant are (i) the length of the delay (ii) the explanation for the delay[2] (iii) the merits of the substantive application[3] (iv) prejudice, and (v) whether the application raises questions of general public importance;

b.  Where the court considers that there is no good reason for extending the period, it will refuse leave to apply for judicial review.  The refusal of an extension of time is part and parcel of a refusal to grant leave to apply.  It is not the case that the court refuses the extension of time as a discrete decision and then makes no decision on the question of leave to apply for judicial review, treating this as a separate matter entirely;

c.  If the court is satisfied that there is good reason for extending the period, it does not follow that leave to apply for judicial review will automatically be given.  While the court might grant leave, it retains a discretion to refuse to do so and the existence of a good reason for undue delay is only one facet of the question, others including sufficiency of interest and the need to satisfy the arguability test.  Leave may also be refused on the basis that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration; and

d.  Even if leave to apply is granted, the issue of undue delay on the part of the applicant may be raised again at the substantive hearing of the judicial review application.  That is a separate consideration of whether relief should be refused on the basis that the court thinks that relief would be likely to cause substantial hardship or prejudice to the rights of another or be detrimental to good administration. 

See AW v Director of Immigration & anor. [2016] 2 HKC 393 (CA) (at §§23 to 36), Thomas Lai [2014] 6 HKC 1 (at §§43 to 45 as also cited in AW, supra), and H v Director of Immigration (2020) 23 HKCFAR 248 at §§17-22, 36-44 citing inter alia both AW and Thomas Lai. See also Re Hariatiningsih [2021] HKCFI 1194 at §§12-13, 16-19 citing the aforesaid, upheld in [2022] HKCA 1321. 

Discussion

9.I do not see any good reason on the papers, and in the circumstances, to extend time for the Applicant’s application for leave to apply for judicial review. I therefore refuse to grant such an extension of time, and leave to apply for judicial review. This is for the following reasons.

10.Firstly, the substantive application is unmeritorious. The Applicant relies on the following Grounds as set out in the Form 86:

a.  “I believe that the Director of Immigration and the Adjudicator of Appeal Board reached the decision wrongly in assessing my Non-refoulement claim.  I believe the decisions were not reasonable and fair (as required by the Wednesbury test).  Indeed, the right to life is protected under Article 28 of the Basic Law and Article 2 of the Bill of Rights.  In practice, the right to life is mainly protected by the criminal law and it must be protected from extra-judicial killings that I may face if I am deported back to my country.” (Ground 1)

b.  “From the Director's Decision, it is evident that the director has failed to appreciate or give the proper importance or weightage to the presence of state Acquiescence in my case.  This has indeed led to an unfair outcome of rejecting my non-refoulement claim.  I was tortured at the Behest and the state law enforcement agencies as well as those in the high ups of political circles.  It is submitted that the state would be rendered liable to me by cause of the state and its public officials failing to provide reasonable protection for its citizens under the duty of due diligence.” (Ground 2)

c.  “The Adjudicator acted unreasonable(sic) and was procedurally unfair by placing too much reliance on Country of Origin Information but failed to take my personal background and experience into account.  Further, I submit that although the Director had listed relevant COIs which support the aversions that the police in my country would not be able to protect.  The Director failed to consider or give enough weightage to that evidence and ruled otherwise.” (Ground 3)

d.  “I submit that the Director has failed to take such argument into account or that the Director has failed to give enough weight to such argument before reaching the Decision.  This was a clean case of unfair attitude shown by the Director which in itself is enough to render his Decision void.  In Fact, the corruption and incompetency of the administration in my country is still a very serious problem.  Various human rights organization has compiled reports on the matter which stated testament to my assertions.” (Ground 4)

e.  “Further, the director has failed to attain the high standard of fairness required by the Wednesbury test in the decision with the arguments put forward above.  As such, the decision of the director should be considered unreasonable in the scope of Public Law.” (Ground 5)

f.  “The Adjudicator was procedurally improper and/or unfair when assessing whether to accept or not to accept explanations provided by me, and unreasonably requires me to response (sic) to questions that I was not in a position to offer any response.  The Adjudicator failed to take into account the nexus of political parties and official corruption which exists in my country, making the persecution effectively persecution by the State.” (Ground 6)

g.  “The Adjudicator made a ruling to dismiss my appeal/petition in the [TCAB/NRCPO] based on findings which the Adjudicator ought to allow the appeal/petition, and thus the Decision was irrational.” (Ground 7)

11.However, once the Applicant had pursued his appeal to the TCAB/NRCPO the Director’s Decision was (absent exceptional circumstances, of which none have been put before me) no longer susceptible to judicial review (Moshsin Ali [2018] HKCA 549; Yeni Setyawati v Torture Claims Appeal Board [2019] HKCA 1310; Sherpunja Thapa Kul Prasad [2022] HKCFI 2434 §18).

12.The Grounds or portions thereof that relate to the Director and/or the Director’s Decision are hence not reasonably arguable and must be dismissed. Consequently Grounds 2, 4, and 5 must be dismissed, and when considering the other Grounds I shall ignore the portions that relate to the Director and/or the Director’s Decision as those are also not reasonably arguable and must be dismissed.

13.The remaining portions of the Grounds are entirely inadequate, being merely generic, vague, and unparticularised assertions using selected keywords and phrases without reference to any underlying facts or matters establishing why, how, and where each of those complaints arise in relation to the TCAB Decision. Such general assertions or propositions of law without particulars are not effective grounds to support a judicial review and cannot assist an applicant (Re Mizan Sikder [2019] HKCA 20 at §17; Re Aziz Nasir [2019] HKCA 578 at §17; Re Kharsu Numan [2019] HKCA 626 at §24; Re Salim Ahmed [2020] HKCA 244 at §20; Haider Khalil [2021] HKCA 223 at §16).

14.Nevertheless, given the seriousness of the issues at hand and the Complaints raised, I have in relation to the question of merits of the substantive application considered the TCAB Decision with rigorous examination and anxious scrutiny, applying the enhanced Wednesbury standard and bearing in mind the need for a high standard of fairness.

15.The TCAB/NRCPO outlined the nature of the appeal/petition before it, followed by the details of how the Applicant had made his torture claim in 2008, and subsequent processing of and events relating to such up to November 2015. The latter included that the Director had treated such as having been withdrawn on 21 November 2015 due to the Applicant’s failure to return a completed NCF by 20 November 2015, and that the Applicant had also been informed that if he wished to apply to re-open such he should provide sufficient evidence in writing to satisfy an immigration officer that he had not been able to return the completed NCF due to circumstances beyond his control (Paragraphs 1 to 8).

16.The decision-maker then set out relevant correspondence between the Applicant and the Director from 11 July to 18 August 2016, including the Director’s requests for supporting documentation and information (Paragraph 10), the reasons for the Director’s Decision (Paragraph 11), and correctly identified the relevant provisions (Paragraph 13) (see Sudimah [HKCA] 1030 at §14; Chaudhary Mohammad Mobeen @ Chaudhry Muhammad Mobeen [2018] HKCFI 995 (CFI) at §§27-28, 33 and [2018] HKCA 663 at §§12, 19; and Ram Chander v Director of Immigration [2018] HKCA 585).

17.As is recorded in the TCAB Decision, the Applicant had (on appeal) only explained why he escaped to Hong Kong and had not given any explanation for his failure to return the completed NCF in time. The decision-maker reviewed the Applicant’s explanations given earlier to the Director (as summarised earlier in the decision), and agreed with the comments on such in the Director’s Decision. He therefore held that the Applicant had failed to meet the relevant criteria, the appeal/petition was dismissed, and the Director’s Decision was confirmed (Paragraphs 14 to 15).

18.From my examination and scrutiny I do not see that the Applicant has any reasonably arguable case that there was procedural unfairness (bearing in mind the need for a high standard of fairness), an error of law, and/or irrationality/failure to meet the enhanced Wednesbury test that vitiates the TCAB Decision.  In particular:

a.  The remnants of Grounds 1, 3, and 6 relate to the merits of the Applicant’s underlying non-refoulement claim.  However they are misplaced and not to the point.  The notice of appeal/petition concerned the Director’s decision under s. 37ZG(3) of the Ordinance not to re-open a withdrawn claim, and did not concern a decision of the Director rejecting the Applicant’s non-refoulement claim on the merits.  There was no basis in the present case to require that the decision‑maker evaluate the merits of the non-refoulement claim or any issues relating to it, and indeed he did not do so[4].  Nor was there any hearing at which responses were required. They are hence unarguable and do not raise any reasonable prospect of success; and

b.  The Applicant has failed to identify the specific facts and matters relevant to the alleged irrationality as alleged in Ground 7.  In any event I see no such irrationality, let alone findings on which the decision-maker ought to have allowed the appeal/petition, or any unreasonable/unfair procedure and/or error of law that tainted any relevant findings and/or rendered any conclusions irrational.  Rather, there is no reasonably arguable public law basis for faulting the process or the conclusions.

19.There is hence no basis for the court to intervene by way of judicial review, and I am not satisfied that there are any reasonably arguable grounds for judicial review which enjoy a realistic prospect of success.

20.Secondly, and in any event, the delay in this case is not only undue but is very substantial, as the application was made some 2 years and nearly 5 months (or just under 29 months) out of time. As mentioned in AW, supra, the longer the delay the more cogent the reason has to be for extending time.

21.Despite this, there was no request for an extension of time to make the application in the Form 86, and no attempt in the Affirmation to advance any reason for the delay in applying.

22.At the hearing before me the Applicant said he accepted his mistake in submitting the application late. He initially claimed that he was “a bit upset” as he had “some family problems”. I reminded him that in his notice of appeal/petition dated 23 August 2016 he had specified his residential address as being Castle Peak Bay Immigration Centre (“CIC”), while the TCAB Decision was dated 14 July 2017. He said that he did not remember when he had been released from CIC, but admitted that he had not updated the Director or the TCAB/NRCPO with his address after his release as he “did not have any proper address” or “permanent address” as he was “living with someone else”. He also sought to suggest that he may have somehow missed the TCAB Notice as he was in prison for various periods, but admitted that he had not been imprisoned from July 2017 all through to 2018, and had only been imprisoned sometime in 2019, then administratively detained in CIC in 2020 (which was when he says he first learnt about the TCAB Decision and then applied for leave with the assistance of a lawyer).

23.I do not accept that such claims establish any credibly valid or acceptable reason for the delay. After all, it is the Applicant’s obligation as a litigant to provide an effective address for service in relation to decisions of the Court, the Department of Immigration, and the TCAB/NRCPO, and as far as the latter was concerned, the address he gave it was the Applicant’s designated means of contact.  The consequence of any delay occasioned by the ineffectiveness of such an address hence falls on his shoulders (Hasmi Rizwan Imran [2018] HKCA 439 at §§14-15).  Moreover, the Form 86 and Affirmation were both dated 12 March 2020 but were only filed on 15 April 2020. While the unusual circumstances of March and April 2020 might be relevant to consideration of this portion of the undue delay[5], viewed holistically any assistance the Applicant might derive from such is de minimis.

24.Thirdly, I also do not see any question of general public importance raised by the application which is likely to be resolved by the courts in any event.  Given the lack of any reasonably arguable grounds, I also see no prejudice to the Applicant if the application were not allowed to proceed, whereas allowing it to proceed would clearly be to the detriment of public administration and would needlessly prejudice the putative Respondent. 

25.In the circumstances, I see no good reason to extend time for leave to apply for judicial review, and I do not consider that I should grant such an extension.  I would also have reached the same conclusion even if I had found (which I have not) that there was a credibly valid and acceptable reason for the delay.  I hence refuse to grant such an extension and to grant leave to apply for judicial review. 

Conclusion

26.In the circumstances, I dismiss the application for leave for judicial review.

Dated the 1^st day of September 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

Form CALL-1