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HCAL 524/2020
[2025] HKCFI 2297
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 524 of 2020
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Imran |
Applicant |
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and
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
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Putative Respondent |
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and
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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;
Order by Deputy High Court Judge (Non-refoulement Claims) Philips Wong:
1. Form 86 be amended as follows:- (1) the Torture Claims Appeal Board / Non‑refoulement Claims Petition Office be named as the only Putative Respondent; and (2) the Director of Immigration be named as the Putative Interested Party.
2. The application for leave to apply for judicial review be dismissed.
Observations for the Applicant:
Introduction
1. By Form 86 filed on 7 April 2020 (the “Form”), the Applicant applied for leave to apply for judicial review (the “Leave Application”) against (1) the decision of the Torture Claims Appeal Board/ Non-refoulement Claims Petition Office (the “Board”) dated 31 December 2019 (the “Board’s Decision”); and (2) the decision of the Director of Immigration (the “Director”) dated 22 March 2019 (the “Director’s Decision”).
2. The Director’s Decision had been superseded by the Board’s Decision. The Director’s Decision is not a decision susceptible to judicial review once an appeal to the Board had been pursued (see Re: Moshsin Ali [2018] HKCA 549, at §§31-45). Accordingly, in so far as the Applicant seeks leave to apply for judicial review against the Director’s Decision, such application fails in limine and is dismissed.
3. In the Form, the Applicant has named both the Board and the Director as the proposed respondents, and the Board as the proposed interested party. As it is trite that the Board should be the proposed respondent whereas the Director should be the proposed interested party, I make an order to amend the Form accordingly on the court’s own motion.
4. The Applicant requested an oral hearing for the application. The hearing took place on 12 May 2025 and the Applicant attended in person.
Background
5. The Applicant’s background, the basis of his claim and the arguments he advanced had been set out in details in the Board’s Decision, and it is not necessary for me to repeat the same here. The hyperlink to the Board’s Decision is included below[1] for reference.
Discussion
6. The Board’s Decision was issued on 31 December 2019. The Form was however only filed on 7 April 2020. The Leave Application was accordingly filed out of time for a few days.
7. No application for extension of time to file the Leave Application was made by the Applicant. There was no explanation for the delay in either the Form or the supporting Affirmation. At the hearing on 12 May 2025, when being asked about the delay, the Applicant said he could not remember the exact date he received the Board’s Decision, but he filed the Leave Application as soon as he received the said decision.
8. In considering whether to extend the time for applying for leave for judicial review, the Court shall have regard to, inter alia, the following:- (a) the length of the delay; (b) the explanation of the delay; (c) the merits of the substantive application; (d) the prejudice; and (e) the question of general public importance: Re Thomas Lai [2014] 6 HKC 1, at §§43-45; AW v Director of Immigration and William Lam CACV 63/2015, 3 November 2015, at §27.
9. In the present case, there was a delay of a few days. The Board’s Decision was sent to the Applicant by post on 31 December 2019. It should have reached the Applicant in early January 2020. The Applicant has not adduced evidence showing when he actually received the Board’s Decision. In the absence of evidence, I do not accept that the Applicant only received the Board’s Decision only shortly before 7 April 2020. Accordingly, I do not regard there is any valid explanation for the delay.
10. As the merits of the intended judicial review is a significant factor to be considered in determining whether the Court should extend the time to apply for leave for judicial review, I shall proceed to consider the merits of the Leave Application.
11. The applicable legal principles relating to application of this sort are well established. The role of the Court in a judicial review is not to provide a further avenue of appeal. The primary decision makers are the Director and the Board. Though in non-refoulement cases, the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. Assessment of evidence, country of origin information (COI) materials, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The Court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board. (See Nupur Mst v Director of Immigration [2018] HKCA 524, at §14)
12. In the Form, the Applicant did not provide any grounds in support of the Leave Application. In the supporting Affirmation, the Applicant claimed that the Board erred in §§50-56 of the Board’s Decision, and stated the following:
“the state can’t give me protection bcz my cousin have power in political parties and police making excuses to take action against him. i am lying to board bcz I have alots of proof but my family lost it bcz of so many attack by the opponents and they get by forcely. i can’t relocte in pakistan bcz he will recloate me easily bcz he borrowed to me alots of money and i am unable to repay him. he asking the money include debt.” (sic)
13. I have considered the Board’s Decision in details, including in particular §§50-56 in which the Applicant claims to contain errors committed by the Board. I do not find any error of law, procedural unfairness or irrationality. Neither has the Applicant been able to demonstrate any of the same. There is nothing to indicate that the Board had failed to take into account any relevant matters. The Board’s Decision was comprehensive with adequate reasons provided. The Board was entitled to make the observations on the Applicant’s claims based on the evidence in §§50-53 of the Board’s Decision. The Board also correctly concluded in §54 of the Board’s Decision that the Applicant’s claim basically related to a civil dispute in debt. This could be handled by a civil court. The Board was further entitled to find, based on the evidence, that the Applicant’s main motivation in leaving the country appeared to be finding work to repay the debt (§55 of the Board’s Decision). Finally, what the Board observed in §56 of the Decision was correct based on the evidence.
14. In §12 above, I have referred to what the Applicant said in the supporting Affirmation. Based on the evidence available before the Board, the Board was entitled to find that state protection would be available or that the Applicant could relocate to other areas even if there would be risk of harm (which the Board found that there would not be) (§§57, 64-65 and 73 of the Board’s Decision). This is particularly so given the Applicant had never sought assistance from the authorities for the alleged past threats or assaults (§56 of the Board’s Decision). Thus, there is no evidence in support of the Applicant’s assertion that the authorities would not assist or protect him. Further, the Board was also entitled to make the finding on relocation given that the Applicant had managed to live and work in Lahore without incidents for a substantial period of time (§§46 and 55 of the Board’s Decision).
15. The Board’s Decision satisfies the enhanced Wednesbury test and is not Wednesbury unreasonable or irrational. I am not satisfied that the Applicant’s intended challenge of the Board’s Decision is reasonably arguable with any realistic prospects of success.
16. Leave application of this sort 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 §23). Suffice for me to state that in reaching the decision, I have considered all the relevant documents before me and the grounds put forward by the Applicant.
Conclusion
17. As the Form was filed out of time and without any valid explanation for the delay, and most importantly the challenge to the Board’s Decision is not reasonably arguable, I refuse to grant an extension of time even if the Applicant makes such application. In the premises, I make an order that the Form be amended as described above and the Leave Application be dismissed.
Dated the 6th day of June 2025.
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(Teresa Ng) |
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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: |
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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)).
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Sent to the Applicant
on the 6th day of June 2025
Imran
Applicant’s ref. no:
Nil |
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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 the 6th day of June 2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 15754/19/4/12/P3124
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 93/19 (Formerly RBCZ/8/19)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000524_2020_files/the_Board's_Decision.pdf
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