Moh Syaiful Hadi v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
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HCAL 15/2023 [2026] HKCFI 4744 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 15 of 2023 BETWEEN
Application for Leave to Apply for Judicial Review NOTIFICATION of the Judge’s decision (Ord. 53 r. 3) Following;
Order by Deputy High Court Judge (Non-refoulement Claims) Isaac Chan:
Observations for the Applicant: 1.By a Form 86 filed on 5 January 2023 (“Form 86”), the applicant applied for leave to apply for judicial review against the decision of the Torture Claim Appeal Board / the Non-refoulement Claims Petition Office (“Board”) dated 3 November 2022 (“Board’s Decision”)[1] refusing to allow the applicant’s late filing of notice of appeal against the decision of the Director of Immigration (“Director”) dated 20 February 2017 pursuant to section 37ZT of the Immigration Ordinance, Cap. 115. 2.In the affirmation in support of the Form 86, the applicant also indicated his intention to apply for leave to apply for judicial review against the Director’s decision dated 20 February 2017. This is misconceived, as the Court of Appeal held in Re Moshsin Ali [2018] HKCA 549, at §45, the decision of the immigration officer is not a decision that, within the administrative structure, is susceptible to judicial review once an appeal to the Board is pursued by the claimant. The fact that the claimant has been disallowed by the Board to file a notice of appeal against the immigration officer’s decision pursuant to section 34ZT of the Immigration Ordinance, Cap. 115, should not be different from the Board having substantively disposed of the appeal. Otherwise, the finality as intended under section 34ZT of the Immigration Ordinance, Cap. 115, would be frustrated. The Director’s decision dated 20 February 2017 should no longer be susceptible to judicial review. 3.Further, in the Form 86, the Board was named both as the putative respondent and the putative interested party. The Director was named as another putative respondent. The Board should be named only as the putative respondent. Also, given my view in paragraph 2 above, the Director should be involved in the present application as the putative interested party only. The Form 86 shall be amended accordingly on the court’s own motion. 4.I refer to the Board’s Decision for the background of the applicant’s claim, which will not be repeated herein. 5.The Court’s role in a judicial review is not to provide a further avenue of appeal. The primary decision makers are the Director and the Board. Given the seriousness of the issue involved in non-refoulement cases, the Court will adopt an enhanced standard in scrutinizing the decisions of the Board. However, the Court will not intervene unless there are errors of law, procedural unfairness or irrationality in those decisions: see Nupur Mst v Director of Immigration [2018] HKCA 524, at paragraph 14. 6.General assertions without particulars cannot be effective grounds to support a judicial review: see Re Fabio Arlyn Timogan [2020] HKCA 971, at paragraph 23. 7.The present application for leave is meant to be a filtering process, and I am not expected to give elaborated reasons for my decision: see Re Zunariyah [2018] HKCA 14, at paragraph 23. I will therefore provide brief reasons for my decision as follows. Discussion 8.The applicant has not provided any grounds for the intended application for judicial review. 9.At the hearing on 13 May 2026, the applicant was absent. 10.Applying the enhanced standard of scrutiny, I do not see any errors of law, procedural unfairness or irrationality in the Board’s Decision. 11.The Board’s Decision has, with respect, correctly set out the applicable legal principles in respect of section 37ZT of the Immigration Ordinance, Cap. 115. I do not see any errors in either the summary or the application of those legal principles. I note that, since the amendment effective on 1 August 2021, section 37ZT no longer requires the Board to consider the merits of the applicant’s non-refoulement claim in the application for allowing a late filing of the notice of appeal against the Director’s decision. 12.The Board’s Decision has also set out the procedural history of the applicant’s non-refoulement claim. Notwithstanding the assistance of the Duty Lawyer, the applicant had never filed a completed non-refoulement claim form to the Director even though time extension was granted. The Director therefore deemed the claim to have been withdrawn. The applicant subsequently requested to re-open the claim but again failed to provide any information as requested by the Immigration Department, which therefore reject the applicant’s request to re-open the claim on 20 February 2017 and advised him of his right to file an appeal to the Board within 14 days if he was aggrieved by the decision. I see no irregularities or unfairness in the entire process. 13.The Board held that the applicant has failed to satisfy the Board that he had exercised all due diligence to file the notice of appeal within the 14-day period as specified in section 34ZS of the Immigration Ordinance, Cap. 115. The applicant received the Director’s decision dated 20 February 2017 but only filed the notice of appeal to the Board on 27 June 2022, which was over 5 years out of time. The Board noted that there was no assertion by the applicant that there was any delay on the part of the Director in sending any documents to him; the applicant was responsible to make sure that the notice of appeal was filed within time; and the applicant was also assigned a Duty Lawyer at the beginning of the process. The applicant’s explanation was that he did not understand English and the procedure and did not have any friend to assist him. However, the applicant has provided no further details as to why this precluded him from making every effort to file his appeal on time, or any other circumstances which prevented him from making enquiries or taking any action to submit his appeal prior to June 2022. 14.Based on the available materials, the conclusions of the Board were clearly justifiable. I do not see any basis to suggest that the Board was irrational based on the principle set out in Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223. 15.I therefore dismiss the application for leave to apply for judicial review under the Form 86. Dated the 20th day of August 2026
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 |
Cases cited in this judgment