IRFAN BAIG also known as MUHAMMAD IRFAN BAIG v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1198/2020

[2025] HKCFI 4652

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1198 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 by the Applicant in open court;

1.  The Applicant’s Form 86 be amended to name the Applicant as “Irfan Baig also known as Muhammad Irfan Baig” and the DI as putative interested party; and

2.  Extension of time for the application for leave to apply for judicial review of the decision of the Board dated 19 January 2017 be refused; and

3.  The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.  By a Form 86 filed on 16 June 2020 (“Form 86”), the Applicant sought leave for judicial review of the decision of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (“the Board”) made on 19 January 2017 (“the Board’s Decision”).  A copy of the Board’s Decision can be viewed by the following hyperlink[1].

2.   The Applicant’s non-refoulement claim was initially assessed on 29 April 2015 by the Director of Immigration (“the DI”) (“the DI’s 2015 Decision”).  The Board’s Decision was on appeal/petition from the DI’s 2015 Decision.  The DI later on further assessed the Applicant’s right under Article 2 of the Hong Kong Bill of Rights on 16 June 2017 (“the DI’s 2017 Decision”), against which there had been no appeal/petition (or at least this Court has no record as such).  

3.  Although the Board’s Decision was clearly written down as the decision being challenged, in the interest of high standard of fairness, I explained to the Applicant the history of his claim process and asked him to confirm whether this application for leave to apply for judicial review was intended to target at the Board’s Decision, the DI’s 2017 Decision or some other decision of the Board/DI.  The Applicant did not answer my question directly, and just kept on asking for mercy.  He said his wife and son are residing in Hong Kong and at one point he even said he did not want to challenge any decision.  I believe the Court has already given the Applicant a sufficient chance to explain the subject of his proceedings.  I will proceed on the basis that the subject is the Board’s Decision.

4.  The Applicant was late in filing this application.  Order 53, rule 4(1) of the Rules of the High Court (Cap. 4A) requires an application for leave to apply for judicial review to be made promptly and in any event within three months from the date when grounds for the application first arose, i.e., when the Board’s Decision was made.  The last day of the 3-month period for the Applicant to file his Form 86 fell on 19 April 2017, he was therefore over 3 years late with this application.  In considering whether to extend the period within which the application shall be made, the Court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration (Re Thomas Lai [2014] 6 HKC 1; and AW v Director of Immigration & Anor [2016] 2 HKC 393).

5.  The Applicant did not make any application for extension of time and provided no explanation for the delay in both the Form 86 and the supporting affirmation.  The delay in this case was significant and substantial.  His application can be dismissed for this reason alone. However, I shall consider the merits of the Applicant’s leave application.

6.  The Applicant has not set out any grounds of judicial review in the Form 86 or supporting affirmation.  He is a Pakistani national. He claimed to be in a romantic relationship with a girl who had a family with connection to notorious people.  His claim was dismissed because the dispute was only private, there was no State acquiescence of violence and there was no real or substantial risk of torture etc.  There was also a reasonable internal relocation alternative.

7.  The Board conducted a hearing to inquire into the facts of the Applicant’s claim.  The Board stated the applicable legal principles in the Board’s Decision and set out the Applicant’s case comprehensively.  There was a rational analysis of the Applicant’s claim.  I have reviewed the Board’s Decision vigorously.  In my judgment, it was based on sound factual findings and there was no apparent legal error in the decision.  These findings were within the Board’s discretion and supported by evidence.

8.  It has been reiterated time and again that the primary responsibility for the factual assessment of whether any future risk of ill-treatment exists if an applicant returns to his/her home country lies with the Board.  In the absence of any errors of law, procedural unfairness or irrationality, the Court would not reopen the Board’s findings or make a determination on the case afresh.  The role of the Court in a judicial review is not to provide a further avenue of appeal (see Re Lakhwinder Singh [2018] HKCA 246).

9.  By reason of the serious delay and lack of merits, I refused to grant an extension of time to the Applicant to apply for leave to commence judicial review.  The leave application is thus dismissed. 

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