ARFAN ULLAH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 417/2020

[2025] HKCFI 3373

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 417 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 Form 86 is amended on the court’s own motion.

2.  Extension of time to apply for leave to apply for Judicial Review be refused;

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

Introduction

1.  By a “Notice of application for leave to apply for judicial review” in the prescribed Form 86 filed on 16 March 2020, the applicant applied for leave to apply for judicial review (“Leave Application”). The intended judicial review was against the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) dated 19 April 2017 (“Board’s Decision”) dismissing the applicant's appeal against a decision of the Director of Immigration (“Director”) dated 3 December 2015 (“Director’s Decision”) rejecting the applicant's non-refoulement claim on the grounds of BOR 3 risk[1] and persecution risk[2]. The applicant’s claim on the grounds of torture risk[3] and BOR 2 risk[4] were disposed of in the Director’s separate decisions dated 17 December 2013 and 3 July 2017 respectively. The Board’s Decision can be viewed at the following hyperlink: -

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000417_2020_files/the_Board's_Decision.pdf

2.  In his Form 86, the applicant named the Board and the Director as the proposed respondent and the Board and the Immigration Department as the interested parties. As the Board should have been the proper respondent and the Director the interested party, the Form 86 will be amended accordingly on the court’s own motion.

3.  The basis of the applicant’s claim was that he would be harmed or killed by the Shia Sect in the applicant’s home village as well as his fear that he would be arrested and ill-treated by the Pakistani police for a murder case framed up by the leaders of the Shia Sect in his village. The Board’s reasoning and findings were set out in detail in the Board’s Decision and it is not necessary for me to repeat them. Unless otherwise specified, I shall also adopt the Board’s abbreviations and descriptions stated in the Board’s Decision.

4.  At the applicant’s request for a hearing of the Leave Application, this court scheduled a hearing on 27 May 2025. The applicant attended the hearing in person. After having heard from him, this court informed him that the decision would be reserved, and be sent to his updated address.

Whether to grant extension of time

5.  First and the foremost, it is necessary to deal with the question of delay in the Leave Application. Pursuant to O 53 r 4(1) of the Rules of the High Court, an application to apply for judicial review shall be made promptly and in any event within 3 months from the date when grounds for the application first arose. Hence, the deadline for the filing of the Leave Applicant had expired on 19 July 2017, and the Leave Application is therefore late for 2 and 1/2 years.

6.  Before considering whether I should exercise my discretion for an extension of time, I should have regard to, among others, (i) the length of the delay; (ii) the reason for the delay; and (iii) the prospect of success of the intended challenge. The present delay is significant and inordinate. Very good reason is required to explain for the delay.

7.  At the hearing, this court inquired from the applicant the reason for the delay. The applicant stated that when he received the Board’s Decision, he did not file any application to judicial review against the Board’s Decision because the Immigration Department took no action to refoul him. It was not until around 2020 did he receive a phone call from the Immigration Department. Over the phone, an officer told him that the Immigration Department would be sending him home as his case had been refused. However, the applicant was told that he could go to the High Court. The applicant added even though he had gone to the reporting center of the Immigration Department to sign his own recognizance every fortnight, no officer had ever informed him that he would be refouled until 2020. The Applicant said that his sole reason for the filing of the Leave Application was to prolong his stay in Hong Kong but not to fault with the Board’s Decision.

8.  After having listened to the applicant’s explanation for the delay, I am not impressed by the reason given. It is plain and obvious that it has never been the intention of the applicant to apply for judicial review against the Board’s Decision. The filing of the Leave Application was solely for the purpose of delaying the refoulment procedure. I find that there is a complete lack of reason to excuse the applicant for the very lengthy delay. On the significant and inordinate delay alone, I do not think that it is justifiable for this court to exercise its discretion in favour of extending time to the applicant to file the Leave Application out of time. I therefore dismiss the Leave Application.

9.  For completeness, I will also briefly deal with merits of the intended challenge below.

Any prospects of success?

10.  The Leave Application operates as a ‘filtering’ process and there is no requirement or expectation to give elaborate reasons for my decision.[5] It is sufficient to state my observations after considering the Board’s Decision and the applicant’s materials adduced.

11.  In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly[6], and further to make full and frank disclosure of all material facts to be verified by an affidavit.

12.  In his supporting affirmation for his Form 86, the applicant raised the following grounds:

(a)  The Board’s Decision did not consider torture risk;

(b)  He was not provided with a translation of the Board’s Decision or an interpreter to read the Board’s Decision back to him;

(c)  The Board was biased and made its determination based on many assumptions without allowing him an opportunity to explain himself, particularly on matters of credibility.

13.  However, the applicant did not provide any particulars in support of his grounds.

14.  At the hearing, this court asked the applicant whether he had any further grounds he wished to submit in support of the Leave Application. The applicant stated that his life was still in danger.

15.  As the Courts have repeatedly stated, a finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality.[7] In the present case, the Board was unable to assess the applicant’s credibility as the latter refused to answer any questions at the hearing. In considering BOR 3 risk, the Board found on the materials before it that the applicant had not suffered any severe injury or serious harm which would meet the minimum requisite requirement. After having independently considered the COI, the Board was also satisfied that state protection was also reasonably available. The Board concluded that there was no substantial ground to believe that the applicant would face a future risk of serious harm,

16.  Bearing in mind the enhanced standard that should be adopted in scrutinizing the Board’s Decision, this court is satisfied that the Board correctly applied the law relating to all the grounds and observed a high standard of fairness. I am satisfied that the Board was entitled to reject the applicant’s claimed risks of BOR 3 risk and persecution risk after the Board’s consideration of all the materials before it.

17.  As for the applicant’s written grounds stated in [12] above, they are either wholly irrelevant or do not condescend to particulars.

18.  For Ground (a), the applicant’s complaint of the Board’s failure to consider torture risk plainly baseless. As already explained in the Director’s Decision (at [4]), the applicant’s previous claim on torture risk had been rejected by a decision on 17 December 2013, and it was therefore not reviewed under USM.

19.  Regarding ground (b), the lack of interpretation of the translation, it is totally devoid of merits. It has been decided in Hong Kong that the high standard of fairness required by law would not entail an interpretation service being made available to an applicant all the time as he may desire: see Re Gurnishan Singh [2018] HKCA 704; Re Gurung Sagar [2019] HKCA 658.

20.  Lastly, for ground (c), the complaint of not being allowed to explain for his evidence before the Board. It is patently clear from the Board’s Decision that it was the applicant’s decision to refuse to give any evidence or offer any explanation despite having had such a chance at the hearing. I find the applicant’s complaint entirely groundless.

21.  Neither had the applicant advanced any grounds in support of the Leave Application at the oral hearing. The applicant has not shown any errors of law or procedural unfairness or irrationality in the Board’s Decision either in his papers or at the hearing. The applicant’s intended challenge to the Board’s Decision is not reasonably arguable with realistic prospects of success such that would enable this court to grant leave[8].

Order

22.  The Form 86 is amended on the court’s own motion.

23.  There shall be no extension of time for the filing of the application for leave to apply for judicial review.

24.  The application for leave to apply for judicial review 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