AHMED MUHAMMAD ZAHEER v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 219/2021

[2025] HKCFI 5676

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 219 of 2021

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

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

Observations for the Applicant:

Introduction

1.  By Form 86 filed on 24 February 2021 (the “Form”), the Applicant applied for leave to apply for judicial review (the “Leave Application”) against the decision of the Torture Claims Appeal Board / Non‑refoulement Claims Petition Office (the “Board”) dated 6 November 2020 (the “Board’s Decision”). 

2.  The Applicant requested an oral hearing for the Leave Application.  The hearing took place on 27 October 2025 but the Applicant did not attend the hearing.  Notice of Hearing was issued to the Applicant on 14 October 2025 at the address provided by the Applicant on the Form.  On 23 October 2025, the Applicant was also successfully contacted and reminded of the hearing by phone.

3.  On 14 November 2025, the Court received the returned mail of the Notice of Hearing. 

4.  It is the duty of a litigant to give the court an address to which correspondence or notice can come to his attention in a timely manner.  The consequence of any delay or failure occasioned by the ineffectiveness of such an address would fall on the shoulder of the litigant (Re Hasmi Rizwan Imran [2018] HKCA 439, at §15).

5.  As the Notice of Address was issued at the address provided by the Applicant to the Court, and that the Applicant was successfully contacted and reminded of the hearing by phone, I consider it appropriate to proceed with the Leave Application in the absence of the Applicant.

Background

6.  The Applicant’s background, the basis of his claim and the arguments he advanced had been set out in detail 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

7.  The Board’s Decision was issued on 6 November 2020.  The Form was however only filed on 24 February 2021.  The Leave Application was accordingly filed out of time for about 3 weeks.

8.  There is no application for extension of time before the Court.

9.  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.

10.  In the present case, the delay was about 3 weeks.  In the Form and in the supporting Affirmation, the Applicant has not provided any reasons for the delay.

11.  Notwithstanding the absence of any explanation for the delay, I shall still proceed to consider the merits of the intended judicial review, as this is an important consideration in deciding whether or not to grant the extension.

12.  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 of Immigration (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, procedural unfairness or irrationality in the decision of the Board.  (See Nupur Mst v Director of Immigration [2018] HKCA 524, at §14)

13.  In the Form and in the supporting Affirmation, the Applicant has not provided any grounds in support of the Leave Application.

14.  I have considered the Board’s Decision in detail.  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 reject the Applicant’s claims based on the evidence and the reasons provided (§§49-79 of the Board’s Decision).  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. 

15.  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.    

Conclusion

16.  As the Form was filed out of time and without any valid explanation for the delay, and more importantly, the challenge to the Board’s Decision is not reasonably arguable, I would have refused to grant the extension of time even if such application is made.  For completeness, the Leave Application would be refused in any event even if it was filed within time based on the reasons stated above.  In the premises, I make an order that the Leave Application be 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