ALI ASGAR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 3229/2019

[2026] HKCFI 2118

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 3229 of 2019

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 the Applicant being absent in open court;

1.  The Form 86 be amended on the Court’s own motion;

2.  Extension of time to file the Form 86 is refused; and

3.  Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 30 October 2019 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 12 December 2018. Enquiries with the Board revealed that the Board had never made any decision in the non-refoulement context in respect of the Applicant dated 12 December 2018, but had made a decision dated 18 October 2018 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 26 January 2017 (the “Notice”), refusing his application for non-refoulement protection under all four applicable grounds under the Unified Screening Mechanism (the “USM”). Obviously, the Applicant was mistaken. Hence, to give effect to his intention, the Court amended his Form 86 on its own motion so as to make the Decision the subject matter in respect of which relief is sought.

2.  The Applicant is an Indian national, now aged 47. His personal background, the factual background leading to the present application, the basis of his claim, the arguments he advanced, the finding of the Board and the reasons for its Decision are set out in details in the Board’s Decision. These will not be repeated here. The hyperlink to the Board’s Decision is included below [1] for reference. In gist, he claims he will be harmed by some Hindu men because he and his Muslim friends had a fight with them for ‘making a pass at his friend’s girlfriend’ and by the police.

The Applicant’s case

3.  The Applicant’s case is that he was having tea with his friend and the friend’s girlfriend on 24 October 2005 when a passing Hindu ‘made a pass at the girlfriend’. A fight broke out between the Applicant’s group and the passing Hindu (the “fight”). The fight escalated into a Hindu-Muslim riot. Then, the police arrived and beat up the Applicant’s group. The Applicant, his friends and his neighbour were was arrested, detained in a police station and tortured. They were charged with assaulting police officers, using weapons and attempted murder of the crowd. They were subsequently released on court bail. After his release, the Applicant saw the Hindu man who started the fight and his Hindu group. They scolded him with foul language and threatened to kill him. The Applicant was also threatened with assault, arrest and death by some of the police officers who were suspended because of the riot. As the father of one of the Hindu group was a police officer, the Applicant was afraid to attend court to report bail. So, his uncle went on his behalf from 14 November 2006 until he left India in December 2007.

The finding of the Board

4.  The Applicant testified before the Board. The Board found his testimony inconsistent with his previous claims in many respects. One of those significant inconsistencies is that he told the Board that bombs and bullets were used in the fight over the girlfriend. His explanations for failing to raise this matter earlier raised even more questions than answers. The Board found him exaggerating and unreliable and placed no weight on the documents he produced. He raised a vague and general claim that his friend who returned to India from Hong Kong was arrested just because he was the Applicant’s friend and ‘the police could not get hold of [the Applicant]’. The Board was satisfied that he exaggerated and fabricated aspects of his evidence. It also queried why no action had been taken in the case against him since 2005. The Board was satisfied that the Applicant’s claims were completely lacking in credibility. It rejected his claim that he is the subject of an ongoing court action over the fight that occurred in 2005. It therefore found that the Applicant’s claim to fear violence at the hands of police officers from his home area or anyone else is not credible. It was not satisfied that that he had established that there are substantial grounds or indeed any grounds for finding that he will face a real risk of ill-treatment, if refouled. Applying the law applicable to non-refoulement protection to the facts found, the Board reached the conclusion that the Applicant is not entitled to protection under any of the applicable grounds under the USM.

Explanation for the late application

5.  However, the Form 86 was filed 10 months and 13 days after the date of the Decision sought to be reviewed. Pursuant to section 21K(6) of the High Court Ordinance and Order 53, rule 4(1) of the Rules of the High Court, it was not promptly made. Usually, an application made three months after the date of the decision sought to be reviewed is deemed not to have been made promptly. Extension of time to file the Form 86 is required. 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 neither.

6.  In AW and Director of Immigration and William Lam[2], 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 grant of extension, the court could be more relaxed with the remaining two. Conversely, if it is against the grant 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[3], per Litton PJ. The delay in this case is very substantial that leave may be refused on this ground alone without considering the merits of the substantive application, unless the Applicant has a reasonable and credible explanation for the delay.

7.  On 17 March 2026, the Court gave him directions to file a statement within fourteen days explaining his reasons for taking more than ten months to take out the leave application and the grounds of his intended application for judicial review. The directions were sent to him by post to his address discovered from the Immigration Department on 12 August 2025. On 27 March 2026, the Applicant filed an affirmation explaining that he has been living in a sub-divided flat and does not have a key or control of the letter box. He said the letter box was sometimes open and sometimes closed. He would take a peek if it was open, but he had never seen the Decision. He said he was first informed of the Decision when he was detained at the Castle Peak Bay Immigration Centre at around the end of October.

8.  This Court does not find his explanation credible or plausible. While it is accepted that he is living in a unit in a sub-divided flat and does not have a key to the letter box or control of the letter box, his account of the arrangement in distribution of mails and that the letter box is sometimes kept open and sometimes kept close is hardly credible. If the letter box is sometimes locked, it means someone is in control of the letter box and responsible for distribution or at least collection of mails. That someone may be the landlord, if he is resident in the premises; or his deputy or a deputized tenant, if he is not. It would be most unlikely that it would be always kept open. On the other hand, if no one is in control, it would be left open all times. In that case, tenants would have to check and pick their mails themselves. The Applicant’s account of the arrangement is inherently implausible. His receipt of the Court’s direction letter and his non-receipt of the Board’s Decision are coincidences too good to happen unless the scenario described by him. Nevertheless, as his leave application have been kept pending for six years, this Court feels uneasy not to give him the benefit of doubt and proceeds to consider merits of his substantive application.

Merits of the application

9.  The grounds of his application as mentioned in his supporting affirmation filed on 30 October 2019 with his Form 86 are that he disagreed with the Board’s Decision; and that he could not return to his home country as his life would be in danger. Essentially, these are challenges of the finding of fact by the Board. 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. Finding of fact is exclusively a matter for the Board. The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[4]. The grounds of his application as mentioned in his supporting affirmation are not valid grounds of review.

10.  The grounds of his application as mentioned in his affirmation filed on 27 March 2026 pursuant to the Court’s directions are October 2019 with his Form 86 are:

(1)  the Applicant would face dangerous problems, harassment and torture in India; he would not be safe in India (paragraph 6 of his affirmation);

(2)  the Director and the Board reached the wrong decision in assessing his claim under the USM; the Board rejected his claim without proper inquiry and careful understanding of his situation and without visiting India and making inquiries there; (paragraph 7 of his affirmation);

(3)  if he did not flee India, he would have been killed (paragraph 8 of his affirmation).

11.  All these grounds are premised on his evidence being the truth of what truly happened in India, the fight on 24 October 2005 between the Applicant’s group and the passing Hindu, the fight escalated into a Hindu-Muslim riot in which bullets and bombs were used, the Applicant’s arrest, the charge and the bail. All these ended, as the Applicant conceded, in nothing after 13 years. The Board found the Applicant exaggerating and his evidence unreliable. It rejected, in particular, that the fight on 24 October 2005 ever occurred. All that the Applicant alleged were fiction. This is a finding of fact solely for the Board, which the Court in a judicial review will not intervene, save for errors of law, procedural unfairness and irrationality in the Decision. None of these are valid grounds of judicial review.

12.  Nevertheless, the Court will re-visit these grounds in its overall scrutiny of the Board’s Decision for errors of law, procedural unfairness and irrationality in the Decision.

Overall scrutiny

13.  Having rigorously examined the Board’s Decision, the Applicant’s grounds for application, the papers and the evidence with anxious scrutiny, the Court is satisfied that there is no substance in any of the grounds of application advanced by the Applicant. The Court is also satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof and quoted relevant precedents in support of its Decision. The Board correctly identified the factual and legal issues raised in the claims. The Applicant’s claim is founded on his fear of harm from the Hindu group and the police arising from the fight on 24 October 2005, which the Board found had never occured. The Decision of the Board was based on its assessment of the Applicant’s credibility and his risk of harm. The Board had carefully weighed the evidence and assessed the Applicant’s credibility. It found him incredible. It gave detailed reasons for its finding. As the Applicant bears the burden of proof of his claim, such a finding is fatal. It was on that basis that the Board found that there was no factual basis to support the Applicants’ claims for non-refoulement protection under any of the four applicable grounds.

14.  The Board’s Decision is a mixed finding of law and of fact. Insofar as it is a finding of the law, it is absolutely correct. Insofar as it is a finding of fact, it is exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality. The Decision was utterly without fault. There are no errors of law in its Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Board observed a very high standard of fairness. Its Decision does satisfy the enhanced Wednesbury test. It is not irrational. Having considered the grounds of application, the Court is satisfied that the Applicant’s claim is not reasonably arguable. There is no realistic prospect of success in the proposed judicial review.

Conclusion

15.  As the Applicant did not file his leave application promptly and his leave application has no realistic prospect of success, extension of time to file the leave application and the leave application are refused.

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