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HCAL 2391/2020
[2025] HKCFI 5113
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2391 of 2020
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Ahmed Naseer |
Applicant |
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
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 December 2020 (the “Form”), the Applicant applied for leave to apply for judicial review (the “Leave Application”) against the decision made by the Torture Claims Appeal Board / Non‑refoulement Claims Petition Office (the “Board”) on 6 July 2020 (the “Board’s Decision”).
2. In the Form, the Applicant named both the Board and the Director of Immigration (the “Director”) as the proposed respondents. The Applicant further named the Board as the proposed interested party. As it is trite that the Board should be the proposed respondent and the Director should be the proposed interested party in an application of this sort, I also make an order to amend the Form on the court’s own motion.
3. The Applicant requested an oral hearing for the application. The hearing took place on 1 September 2025. Notice of hearing was issued to the Applicant in advance at the address provided by the Applicant on the Form. Attempts were also made to contact and remind the Applicant of the hearing by phone (at the number provided by the Applicant on the Administrative Form and on Form No. 8) on 28 and 29 August 2025 but the Applicant could not be reached on both occasions. The Applicant did not attend the hearing. As proper notice had been given to the Applicant at the address provided by him, and attempts had also been made to remind the Applicant of the hearing at the number he provided, I consider it appropriate to proceed with the Leave Application in the absence of the Applicant.
Background
4. 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
5. The Board’s Decision was issued on 6 July 2020. The Form was however only filed on 7 December 2020. The Leave Application was accordingly filed out of time for about 2 months.
6. 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.
7. 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.
8. In the present case, there was a delay of about 2 months. There is no explanation, let alone valid explanation, for the substantial delay.
9. 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.
10. 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, procedural unfairness or irrationality in the decision of the Board. (See Nupur Mst v Director of Immigration [2018] HKCA 524, at §14)
11. In the Form, the Applicant did not provide any grounds in support of the Leave Application. In the supporting Affirmation, the Applicant stated that he wanted to apply for judicial review in respect of both the Board’s Decision and the decision of the Director dated 15 October 2018. No grounds were provided in support of the Leave Application.
12. The Director’s said decision had already been superseded by the Board’s Decision. The Director’s decision is not 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 in relation to the Director’s said decision, the application fails in limine and is hereby dismissed.
13. 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. This is particularly so given the Board’s finding that the Applicant is dishonest and unreliable (§26 of the Board’s Decision). I do not see any errors committed by the Board. 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 to the Board’s Decision is reasonably arguable with any realistic prospects of success.
14. 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
15. As the Form was filed significantly out of time and without any valid explanation for the delay, and 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 28th day of October 2025
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(Allen LEE) |
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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 28/10/2025
Ahmed Naseer
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 28/10/2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 14064/18/10/406/P2790
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 3635/18 (Formerly RBCZ 2002677/14 (T8I46))
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/HCAL002391_2020_files/the_Board's_Decision.pdf
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