Zain Ali v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
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HCAL 806/2022 [2026] HKCFI 5761 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 806 of 2022 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 To:
Observations for the Applicant: Introduction 1.This is the Applicant’s application by Form 86 filed on 22 August 2022 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board/ Non-refoulement Claims Petition Office (the “Board”) dated 21 March 2022 (the “Decision”) refusing his application for late filing of Notice of Appeal (“NOA”) against the decision of the Director of Immigration (the “Director”) in his Notice of Decision 8 November 2021 (the “Notice”). 2.The Applicant had requested an oral hearing. A hearing on 7 September 2026 was scheduled and notice of hearing were sent to him by post on 19 August 2026 to his address as stated in his Form 86 (which contains a mis-spelling of the name of the street) and to his last known address discovered from the Immigration Department on 9 March 2026 (which contains the correct spelling of name of the street). Neither of the notices has been returned in the course of mail. The Applicant had never informed the court of any change of address since filing his Form 86. There is nothing to suggest that he had not received either of the notice of hearing. Attempts were made on the afternoon of 4 September 2026 to contact him by telephone on the telephone number provided by him and confirmed by the Immigration Department to remind him of the hearing, but the calls were not answered. The Court was satisfied that the notice of hearing had been duly served on the Applicant and that the Court had tried its best endeavour to bring the hearing to his notice. He did not appear at the hearing. Having considered the nature of the application and issues raised, the Decision, the papers, the applicable legal principles and all the circumstances, the Court considered that the leave application may be justly determined on paper without an oral hearing. The delay in taking out the leave application 3.The leave application was filed one year, five months and two days after the date of the Decision sought to be reviewed. Under section 21K(6) of the High Court Ordinance and Order 53, rule 4(1) of the Rules of the High Court, a leave application 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 there is good reason for extending the period within which the application shall be made. The leave application was made more than two months beyond what is usually regarded as having been promptly made. The Applicant has to show good reason for extending the time to file the leave application. 4.In AW and Director of Immigration and William Lam CACV 63/2015 (unreported) 3 November 2015[1], the Court of Appeal held that the following factors are relevant in determining whether to grant leave to file an application for leave to apply for judicial review out of time: (1) length of the delay; (2) explanation for the delay; (3) merits of the substantive application; (4) prejudice to the applicant if leave is refused vis-à-vis that to the respondent and public administration if leave is granted; and (5) whether the application raises any questions of general public importance, and whether those questions are likely to have to be resolved by the courts in any event. Usually, the first three factors, particularly merits, are most crucial and determinative. If the sum total of these three factors are in favour of granting extension, the court would be more relaxed with the remaining two. Conversely, if it is against the granting of extension, there is no need to consider the remaining two factors. However, where an application is many months out of time, leave may be refused “however strong the complaint might otherwise be”, see Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676 at 693B to C[2], per Litton NPJ, per Litton PJ. 5.Despite clear warning in the Form 86 that an applicant is required to state his grounds for application and reasons for delay, if any, the Applicant provided no explanation for the late application. He did not attend the hearing and forwent the opportunity to have the Court’s assistance to explore the reason for the delay with him. The Applicant has no reasonable explanation for the more than two months’ delay. The leave application was not promptly made. The Court could not find any good reason to extend the time for filing his leave application. For this ground alone, the Court refused him extension of time to file the leave application and his leave application is refused. However, for completeness, the Court explored the merits of his leave application below. The law applicable to late filing of NOA 6.Under Section 37ZV(1) of the Immigration Ordinance (the “Ordinance”) and Paragraph 8.7 of the Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme (the “Petition Guide”), the Director may serve/give notice or other documents to a person personally; via mail to the last known residential/correspondence address, and/or via mail to the person’s legal representative. A person is presumed to have been served/given and received the notice or other documents either on the day it was given, or on the second working day after it was sent via mail. 7.Under Section 37ZS(1) of the Ordinance and Paragraph 8.1 of the Petition Guide, a claimant aggrieved by the decision of the Director may appeal that decision by filing a NOA with the Board within 14 days after the Notice of Decision was served on him. Failing that, he may make a late filing, pursuant to Section 37ZT(1) of the Ordinance, by giving a statement of the reasons for his failure accompanied by all available supporting evidence. For that purpose, Section 5 of the NOA form is designed as an application for late filing for the claimant to state the reasons for his failure when filing the NOA. 8.Section 37 ZT(2) and Paragraph 9.2 of the Petition Guide mandate the Board to decide, as a preliminary decision without a hearing, whether to allow the late filing. On the applicable version of section 37ZT(2) which came into operation on 1 August 2021, the Board is mandated to only take account of the statement of reasons stated in Section 5 of the NOA and the supporting evidence relied on. 9.Under Section 37ZT(3) and Paragraph 9.3 of the Petition Guide, the Board may allow late filing if the claimant has provided sufficient evidence in writing to satisfy the Board that he had exercised all due diligence to file the NOA within time but failed because of circumstances beyond his control. The burden of proof is on the Applicant and the threshold is very high. He has to prove both the exercise of all due diligence and circumstances beyond his control. The finding and decision of the Board 10.The Director’s Notice was sent to the Applicant care of the Duty Lawyer Service (“DLS”) on 8 November 2021. The Applicant lodged his NOA against the Notice on 30 November 2021. Depending on how the Notice was sent, the NOA was lodged between five to seven days after the 14 days period. In Section 5 of the NOA, the Applicant gave the following explanation for late filing:
11.The Board considered the Applicant’s explanation was very brief, unsupported by any medical evidence and did not establish that he was unable to file the NOA within time. Under section 37ZT, the Board was required to only consider the material provided by the Applicant in relation to the reasons as to why he was late. Based on the statement provided by the Applicant, it was not satisfied that he had exercised all due diligence to make the application within the required time but failed to do so due to circumstances beyond his control. 12.Nevertheless, out of extreme caution, the Board also considered merits of his leave application. The Applicant claimed that he was at risk of harm or death by his uncle and cousins because of a land dispute. It assessed the merits of the Applicant’s non-refoulement claim on the basis of the case as he asserted. It considered the evidence only indicated that his uncle wished to scare him but had no intention to seriously harm him or kill him or to do so upon his return to Pakistan. It also considered the Applicant could avoid the harm from his uncle by relocation to Abbottabad or other areas of Pakistan and it would not be unduly harsh for him to do so. It was therefore not satisfied that the Applicant’s evidence established that there was a real risk or a real chance that he would be subject to torture, a risk to his life, cruel or inhuman treatment or punishment or persecution upon his return to Pakistan. 13.For all these reasons, the Board found there was no merit in the Applicant’s non-refoulement claim. And as he was late and had failed to establish he had exercised all due diligence to file the NOA within time but failed due to do so due to circumstances beyond his control, the Board was not satisfied that it should allow the late filing. The legal principles applicable to judicial review 14.The function of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. In an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[3]. Grounds for judicial review 15.The Applicant did not advance any grounds of appeal in his Form 86, or his supporting affirmation. He did not attend the hearing and forwent his opportunity to explore the reasons for his late filing with the Court. In the absence of specific grounds of application or grounds with sufficient particulars, the Court could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision. Overall scrutiny 16.The decision which the Applicant seeks to judicially review is the Board’s Decision refusing his late filing of the NoA. That is a decision which the Board is required to make under section 37ZT(2) of the Immigration Ordinance as a preliminary decision without a hearing. The scope of review is very narrow. 17.Having rigorously examined the Decision, the papers, and the evidence with anxious scrutiny, this Court is satisfied that the Board had correctly set out the law and the relevant statutory provisions and legal principles relating to late filing of the NOA, correctly identified the issues and observed a very high standard of fairness. 18.Against a fourteen days period of appeal, the Applicant’s delay of between five and seven days was substantial. The Board considered there was no reasonable explanation for the delay and found he had failed to establish that he had exercised all due diligence to file the NOA within time but was unable to do so due to circumstances beyond his control. On the evidence, it was open to the Board to make this finding of fact. The Board’s Decision is essentially one of finding of fact, which the Court in a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality. The Court could detect no error of law or procedural unfairness in the Decision. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. The Decision is fully justified by the evidence. It is utterly without fault. The proposed judicial review has no realistic prospect of success. Conclusion 19.For the above reasons, extension of time to file the leave application is refused and the leave application is also refused. Further, the Court noted that even if the leave application had been filed within time, the proposed judicial review has no realistic prospect of success. Dated the 20th day of October 2026
Form CALL-1 [1] CACV 63/2015 (unreported) 3 November 2015 [2] (2007) 10 HKCFAR 676 at 693B to C, per Litton NPJ [3] [2018] HKCA 524 at [14(1)] |
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