AHMED NIAZ v. TORTURE CLAIMS APPEAL BOARD

HCAL 2137/2020

[2025] HKCFI 5852

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2137 OF 2020

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

	consideration of the documents only; or
	consideration of the documents and oral submissions by the applicant in open court;

1.  On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board” and the name of the putative interested party be amended to “Director of Immigration”.

2.  The applicant’s application for leave to apply for judicial review be dismissed.

Observations for the applicant:

The Leave Application

1.  By way of Form 86 dated and filed on 27 October 2020, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board (“the Board”) dated 12 November 2018 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL002137_2020_files/the_Board's_Decision.pdf

2.  The Board found that the applicant had not made out a case for non-refoulement protection on any of the applicable grounds under the Unified Screening Mechanism (“the USM”). Thus, the Board dismissed the applicant’s appeal/petition against the decisions of the Director of Immigration (“the Director”) dated 8 October 2015 and 8 May 2017 respectively and confirmed the same.

Amendments

3.  In Form 86, the applicant named “TORTURE CLAiMS APPEAL BOARD NON REFOULMENT CLAIMS OFFICE” as the putative respondent and himself as the putative interested party.

4.  In fact, only the Board should be named as the putative respondent and the Director should be the putative interested party.

5.  The Non-refoulement Claims Petition Office is just an office which provides administrative and secretariat support to the adjudicators of the Board and should not be named as a putative respondent at all.

6.  Thus, this court makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board” and the name of the putative interested party to “Director of Immigration”.

Late application

7.  By virtue of Order 53, rule 4(1) of the Rules of the High Court, Cap 4A, the applicant had to make the Leave Application within 3 months when the grounds for the Leave Application first arose, ie when the Board’s Decision was made.

8.  However, the applicant filed Form 86 on 27 October 2020, which was more than 23 months after the Board’s Decision (made on 12 November 2018). The applicant was hence late for more than 20 months in making the Leave Application, and this court has to consider whether there is any good reason to extend the time for the applicant to make the Leave Application.

9.  As held in AW v Director of Immigration [2016] 2 HKC 393, the criteria for granting an extension of time are:

(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.

10.  The applicant did not make any application for extension of time and provided no explanation for the delay when he filed the Leave Application. At the oral hearing before this court on 6 November 2025, the applicant said that he received the Board’s Decision in 2020 and he made the Leave Application at once, but he did not know why the Board’s Decision was sent to him so late.

11.  The delay of more than 20 months is very substantial and the explanation provided by the applicant is unsatisfactory. There is simply no reason why the Board’s Decision would be delivered to him so late when he confirmed that the address used for sending the Board’s Decision was correct. More importantly, there is no merits of the intended judicial review as discussed below.

12.  Having considered the above criteria, this court is not prepared to grant any extension of time to the applicant to file the Leave Application, even if an application for extension of time was made. The Leave Application can therefore be dismissed on the ground of being made out of time alone.

13.  However, for the sake of completeness, this court will still examine the merits of the Leave Application.

The applicant’s case

14.  It is not necessary for this court to repeat the details of the applicant’s case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above.

15.  In sum, the applicant claimed for non-refoulement protection because if refouled to Pakistan, he would be harmed or killed by Qasim Ali, the brother of his girlfriend (named Laila Batool), and by her uncles, as they did not accept their relationship for reason that he was a Sunni-Muslim whilst she was a Shia-Muslim.

Oral hearing

16.  The applicant requested for an oral hearing of the Leave Application and his case was heard on 6 November 2025.

17.  When this court asked the applicant for the grounds of his intended judicial review, the applicant merely said that he wanted to stay in Hong Kong as he was married to a Hong Kong resident and he was having medical treatment here. He did not have anyone in his country, and his wife was the only person supporting him now. He further said that he had applied for a dependent visa but was refused. He was applying for it a second time and he asked this court to allow him to stay longer to wait for the result of his second application for dependent visa.

Grounds for judicial review

18.  The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).

19.  However, the applicant did not advance any ground for his intended judicial review in Form 86, nor in his supporting affirmation dated 27 October 2020. He merely stated in the affirmation that he was not satisfied with the decision of the Immigration Department and his life was still in danger in his home country.

Discussion

20.  The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. 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. 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 [2018] HKCA 524).

21.  The applicant’s alleged danger had been duly assessed and rejected by the Board. If the applicant intends to challenge the Board’s finding of facts, it is not permissible in a judicial review.

22.  The applicant’s claim at the oral hearing before this court that he is married to a Hong Kong resident and his wife is the only one supporting him are not grounds to challenge the Board’s Decision. In any event, family unity rights are not a bar to refoulement of foreign nationals without a right of abode, even when they have a spouse and children who are permanent residents of Hong Kong (see Comilang & Ors v Director of Immigration [2019] HKCFA 10).

23.  Nevertheless, despite the lack of any valid ground being advanced by the applicant for the intended judicial review, this court will examine and scrutinize the Board’s Decision for any errors of law, procedural unfairness and irrationality.

24.  In assessing the appeal by the applicant, the Board arranged an oral hearing on 9 May 2017 and the applicant was present. Thus, the applicant did have the opportunity to present his case to the Board in person. However, the applicant did not give evidence at the Board’s hearing.

25.  As can be seen from paragraphs 29 to 40 of the Board’s Decision, the Board did give detailed reasons as to why it concluded that the information provided by the applicant, which formed the basis of his claim, was incredible and unreliable. The Board could not base on such unreliable information to reach a decision in the applicant’s favour and hence it dismissed his case.

26.  The Board went on to assess the applicant’s alleged risk of harm in paragraphs 41 to 48 of the Board’s Decision. The Board concluded that, even if the information set out in the applicant’s Non-refoulement Claim Form was to be accepted, the applicant’s then girlfriend’s family had shown no intention to kill him or to cause him serious injuries, and they had no interest to locate him. Thus, the applicant’s feared harm from them was unlikely to materialize upon his return and relocated to a place other than his home village.

27.  The Board found from country of origin information (“COI”) that reasonable state protection would be available to the applicant if he resorted to it. Moreover, it would not be unduly harsh for the applicant, being a mature adult with 6 to 7 years of work experience, to relocate to places other than his home village in order to avoid the perceived risk of harm from his enemies and to earn a living there.

28.  Thus, the Board found that the applicant had failed to establish a case for non-refoulement protection on all the applicable grounds under the USM.

29.  The assessment of evidence, COI and risk of harm was primarily within the realm of the Board. The Board was entitled to come to its own conclusion. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.

30.  Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM, the burden of proof and the standard of proof. The Board also correctly identified the issues and observed a very high standard of fairness. This court could detect no errors of law, procedural unfairness or irrationality in the Board’s Decision. The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision.

31.  As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, for the court to grant leave to apply for judicial review, the claim has to be a reasonably arguable claim which enjoys realistic prospects of success. It is the view of this court that the applicant has failed to establish such a claim and hence leave must be refused.

Conclusion

32.  For reasons aforesaid, the Leave Application is dismissed for being made out of time and also for lack of merits.

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