Case Detail

HCAL 1511/2020

[2026] HKCFI 2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 1511 OF 2020

_____________

BETWEEN

	Azeem Nasir	Applicant
	and
	Torture Claims Appeal Board / Non-refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

_____________

Before:

Deputy High Court Judge K.W. Lung in Chambers

Date of Decision:

6 May 2026

_____________

D E C I S I O N

_____________

The application

1. The applicant is an illegal immigrant by staying in Hong Kong without permission and he lodged a non-refoulement claim with the Director of Immigration (“the Director”). The Director rejected his application and he appealed to the Torture Claims Appeal Board (“the Board”). As the applicant’s appeal was out of time, the Board, by its Decision (“the Board’s Decision”), refused to extend time for him to file his notice of appeal, effectively dismissed his appeal.

2. Pursuant to Order 53, rule 3(2) of the Rules of the High Court (“RHC”), the applicant filed Form No. 86 to apply for leave to apply for judicial review of the Board’s Decision.

3. By Form CALL-1 dated 12 July 2022 (“the Court’s decision”), the Court granted leave to the applicant to apply for judicial review of the Board’s Decision. The Court further ordered that the applicant should issue the originating summons within 14 days after the decision.

4. The Court’s decision was sent to the applicant on 12 July 2022 at his last known address without being returned from the Post Office. He is deemed to receive the Court’s decision[1].

5. The time for filing the originating summons expired on 26 July 2022[2].

6. By letter lodged on 3 February 2026, the applicant applied for extension of time to issue the originating summons for judicial review of the Board’s Decision. He is late for more than 3 years and 6 months. The applicant asked for 14 days to issue the originating summons.

7. The applicant admitted that he had delayed the application because he is not an educated person and he apologized.

Discussion

8. Pursuant to Order 32, rule 11 and 11A and Order 53, rule 3(3) of the RHC, having considered the applicant’s reason, I decide to determine this application on paper without an oral hearing[3].

9. The reason under paragraph 7 is not valid for his delay.

10. It is clear that the Board had not considered the merits of the applicant’s case. The Court decides to give the applicant one final chance to take out an application for leave for judicial review of the Board’s Decision. In view of the long delay and lack of good reasons, the Court decides to impose a “unless order” on the applicant in terms as follows:

“Unless within 14 days of the service of this order, the applicant files the originating summons in accordance with Order 53, rule 5(5) of the Rules of the High Court, the applicant’s application shall be dismissed without further order of this Court.”

	(K.W. Lung)
	Deputy High Court Judge

The applicant was unrepresented.

[1] Re: Ravinder Singh[2023] HKCA 604, Hon Poon CJHC and Cheung JA, 28 April 2023

“17. The applicant had not filed any notice of change of address for service to notify of any changes in his address. According to the Court’s record, the Court’s decision was sent to the applicant’s last known address on 31 March 2022 by ordinary post. He was deemed to receive the same on the next following day, not being a specified day such as a Saturday or a general holiday. He was therefore deemed to have received the Court’s decision on 1 April 2022.”

[2] The public holidays are included in the 14-day period as per Order 2(5) of the Rules of the High Court

2. Reckoning periods of time (O. 3, r. 2)
(5) Where, apart from this paragraph, the period in question, being a period of 7 days or less, would include a specified day, that day shall be excluded.
(35 of 1998 s. 5; 18 of 2016 s. 5)

[3] Ogbozor Tochukwu Eugene v Torture Claims Appeal Board/Non-refoulement Claims Petition Office and Director of Immigration[2022] HKCA 607, Hon Kwan VP and G Lam JA, 6 May 2022:

“16. … … In respect of his complaint of no oral hearing, the judge is entitled to decide the matter on paper pursuant to the Order 32, rules 11 and 11A and Order 53 rule 3(3) of the Rules of the High Court.”

HCAL 1511/2020

[2022] HKCFI 1980

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1511 of 2020

BETWEEN
	Azeem Nasir	Applicant
	and
	Torture Claims Appeal Board/	Putative Respondent
	Non-refoulement Claims Petition Office
	and
	Director of Immigration	Putative Interested Party

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 for the applicant to apply for Judicial Review within 14 days after this
decision in accordance with Order 53, rule 5 (5) of the RHC be granted.

Observations for the Applicant:

THE APPLICATION

1. The applicant applies for leave to apply for judicial review of the Decision dated 8 July 2020 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2. The applicant did not request an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the Court will deal with his application on paper.

The applicant

3. The applicant is a national of Pakistan. He entered Hong Kong on 14 December 2010 and was granted the dependent visa. His dependent visa was last extended to 2 March 2019. He did not depart nor did he apply for the extension of his dependent visa. He had therefore overstayed since 3 March 2019. On 20 December 2019 and 27 December 2019 respectively, he lodged a non-refoulement claim on the basis that, if refouled, he would be harmed or killed by the members of the Pakistan Tehreek-e-Insaf (“PTI”).

4. According to the applicant, in around May 2015 to early June 2015, he was involved in a heated political discussion in which some drunken people attacked him and his friend with smashed beer bottles. Both of them sustained injuries. Out of fear, the applicant decided to stay in Hong Kong for protection. Details of his claim are set out at paragraph 6 of the Notice of Decision dated 27 April 2020 by the Director (the “Director’s Decision”).

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 way of the Director’s Decision, the Director dismissed the applicant’s claim on the basis that the level of risk of harm upon refoulement was assessed to be low. In elaboration, the Director found that (i) the low intensity and frequency of past ill-treatment indicated an unlikelihood of future risk of harm [11]-[13]; (ii) the state protection would be available to him [14]-[16]; and (iii) internal relocation was a viable alternative [17]-[20].

The Board’s Decision

7. On 18 May 2020, the applicant filed a notice of appeal/petition against the Director’s Decision to the Board. He was 5 days late [3]. The applicant did not provide any reasons for the delay [9]. As the applicant was detained at the material time, the Board inquired him of the date he received the Director’s Decision from the Duty Lawyer Service and of the reason for the delay. Yet, he did give any reply to the said inquiries [11].

8. In light of the delay and the applicant’s failure to provide cogent explanations for the delay, the Board refused to allow the late filing of the notice of appeal/petition.

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

9. The applicant has filed Form 86 dated 16 July 2020 for leave to apply for judicial review of the Board’s Decision.

10. In his affirmation in support of his application, the applicant said he did not agree with the Board’s Decision and he did not want to return to his country because his life was in danger.

DISCUSSION

11. The issue for this Court is whether the Board was entitled to refuse extension of time for the applicant to file his notice of appeal under the circumstances as stated in the Board’s Decision.

12. I note that the Board had resorted to the case of Re Asghar Ivrat HCAL 9/2016 by Hon. Li J. However, this Court of the First Instance judgment has been overridden by the Court of Appeal in in Re Khan Kamal Ahmed[2019] HKCA 377 dated 2 April 2019, which has widened the scope of the Board’s consideration to cover the merits of the applicant’s case, suitably demonstrated in the Director’s Decision, which should be put before the Board. The Court of Appeal held that the Board has to consider the merits even if the applicant is absent or late for the filing of the appeal:

“16. Section 37ZT(3) of the Ordinance gives the Board the discretion to allow the late filing of a notice of appeal if it is satisfied that by reason of special circumstances, it would be unjust not to do so.
17. Where a notice of appeal to is filed out of time, s 37ZT(2) mandates the Board to decide as a preliminary decision without a hearing whether it allows the late filing of the notice of appeal, and in doing so, to take account of “any other relevant matters of fact within the knowledge of the Board” apart from the explanation for the delay.
20. … … 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.”

13. The Board should have the Director’s Decision as it should be submitted by the applicant for his appeal. The Board has to consider the merits of the case by reference to the Director’s Decision, which the Board had failed to do, a procedural impropriety which may render the Board’s Decision to be set aside under the law.

14. I note that section 37ZT of the Ordinance has been revised and is operative on 1 August 2021. If the matter is remitted to the Board for decision, the Board has to apply the law then existing before the revised version, which does not have retrospective effect.

15. The applicant has a realistic chance of success of his intended judicial review against the Board’s Decision.

CONCLUSION

16. Accordingly, I grant leave to the applicant to apply for judicial review within 14 days after this decision in accordance with Order 53, rule 5 (5) of the RHC. The applicant should take the appropriate step to comply with the statutory provision, failing which this Court may take the initiative to enforce compliance.

Dated the 12^th day of July 2022

(M.O. WONG)(Ms)
for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or the Applicant’s solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 12 July 2022 Azeem Nasir Applicant’s ref. no: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 12 July 2022 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 16937/20/5/26/P3334 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 48/20 (Formerly RBCZ 278/19) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)

Form CALL-1

AZEEM NASIR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE [Decision on Leave Application]

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Files (2)

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