Asim Khan v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 403/2021

[2026] HKCFI 5722

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 403 of 2021

BETWEEN

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and Applicant being absent in open court;

Order by Deputy High Court Judge K.W. Lung:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 4 March 2021 of the Torture Claims Appeal Board (“the Board’s Decision”), dismissing the appeal against the Director’s Decision as described below.

2.The applicant did not ask for a hearing.

The applicant

3.The applicant is a national of Pakistan. He is an illegal immigrant. He lodged a non-refoulement claim with the Director of Immigration (“the Director”) on the basis that, if refouled, he will be harmed or killed by Taliban due to money extortion.

4.Details of his claim are set out in the Director’s Decision dated 14 March 2017 (“the Director’s Decision”). For this application, it is not necessary to refer to the details of his story as he was late in filing the Notice of Appeal, and the Board had considered the merits of his claim before it refused to extend time for him to file his Notice of Appeal. The delay is serious and the applicant failed to give good reason for his delay.

The Director’s Decision

5.The Director considered the applicant’s claim in relation to the following risks:

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

b.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

c.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

d.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

6.By the Director’s Decision, the Director dismissed the applicant’s claim on all applicable risks because it was unsubstantiated.

The Board’s Decision

7.The applicant appealed the Director’s Decision to the Board. However, he filed the notice of appeal with the Board out of time. The Board received the notice of appeal on 16 November 2020. The Board found that the applicant was late for 3 years and 7 months in filing his notice of appeal. [2] & [9]

8.The applicant had provided reasons for late filing under section 5 of the notice of the appeal. He said he accepted his mistake and apologized. He explained that he was mentally depressed and he had no knowledge how to get appeal documents. He had got a friend to help him.

9.The Board did not accept his explanation for his delay. [19] The Board further considered the Director’s Decision on the merits of his claim. The Board agreed with the Director and refused to extend time for filing his notice of appeal, in effect, dismissing his appeal.

Application for leave to apply for judicial review of the Board’s Decision

10.The applicant filed Form 86 dated 22 March 2021 for leave to apply for judicial review of the Board’s Decision.

11.In support of his application, the applicant said in his affirmation that the Board’s Decision is unreasonable and wrong. He did not raise any specific reason to challenge the Board’s Decision. He has attached a copy of the Board’s Decision to his affirmation.

DISCUSSION

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

13.Section 37ZT of the Ordinance as amended and operative on 1 August 2021 provides:

“37ZT. Late filing of notice of appeal

(1) If a notice of appeal is filed after the expiry of the 14-day period referred to in section 37ZS(1), it must include an application for late filing of the notice, which —

(a) must include a statement of the reasons for failing to file the notice within that period; and

(b) must be accompanied by all available evidence relied on in support of the reasons referred to in paragraph (a).

(Amended 7 of 2021 s. 19)

(2) The Appeal Board must decide, as a preliminary decision without a hearing, whether the Board allows the late filing of the notice of appeal under subsection (3), and in doing so, the Board may only take account of the statement of reasons stated in the application for late filing of the notice of appeal and the evidence relied on in support of the reasons.

(Amended 7 of 2021 s. 19)

(3) The Appeal Board may allow the late filing of the notice of appeal if the person filing the notice provides sufficient evidence in writing to satisfy the Board that the person—

(a) had exercised all due diligence to file the notice within the period specified in section 37ZS(1); but

(b) failed to file the notice within the period because of circumstances beyond the person’s control.

(Replaced 7 of 2021 s. 19)”

14.The Board’s Decision was dated 4 March 2021.

15.It is therefore incumbent upon the Board to consider the merits or other matters of the applicant’s claim for the late filing of the notice of appeal as decided by the Court of Appeal in Re Qasim Ali [2019] HKCA.

16.The Board has given reasons for refusing to extend time for the applicant to file his notice of appeal in paragraphs [12]-[35]. It had considered the merits of the applicant’s case, saying that it had considered the Director’s Decision and agreed with the Director that he was not at real risk in Pakistan under any of the applicable risks [27]; that it was unreasonable for the applicant to return to Afghanistan where the Taliban was active [29]; that internal relocation is viable if he returns to Pakistan [32].

17.The applicant has raised no reason to challenge the Board’s Decision.

18.In my view, the Board had complied with the requirements of the Court of Appeal in Re Qasim Ali by considering the merits of the applicant’s claim. The delay is serious. The Board’s Decision bears no error in law or procedural irregularities. Nor are the decision Wednesbury unreasonable.

19.The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.

DISPOSITION

20.I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.

Dated the 14^th day of October 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