RAJAONARISON SOLONIRINA ALAIN JEAN PARFAIT v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1303/2025

[2026] HKCFI 1004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1303 of 2025

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 Applicant being absent in open court;

1.  The extension of time for the application for Judicial Review be refused; and

2.  The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 5 September 2024 of the Torture Claims Appeal Board (“the Board’s Decision”). His application is late. His application shall not be later than 3 months from the date of the Board’s Decision[1], which expired on 5 December 2024. His application was filed on 9 June 2025, which is late for more than 6 months. This issue will be dealt with below.

2.  The applicant did not ask for a hearing.

The applicant

3.  The applicant is a national of Madagascar. He is an illegal immigrant. He lodged a non-refoulement claim on the basis that, if refouled, he will be harmed or killed by his mother because he is homosexual, which his mother considers to be disgraceful.

4.  Details of the applicant’s story can be found in the Board’s Decision. See hyperlink https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2025/HCAL001303_2025_files/the_Board's_Decision.pdf.

The Director’s Decision

5.  The Director considered the applicant’s claim in relation to the following risks:

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

c.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

d.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

6.  By Notice of Decision dated 9 May 2024 (“the Director’s Decision”), the Director refused the applicant’s claim on all applicable risks because it was unsubstantiated.

The Board’s Decision

7.  The applicant appealed the Director’s Decision to the Board. On 20 August 2024, the Board conducted an oral hearing. He had given oral evidence and answered the Board’s questions.

8.  Having considered the evidence, the Board made the findings below.

(1)  His account of the incidents is acceptable to the Board. [49]

(2)  There is no evidence that his mother would harm or kill him. She had plenty of opportunity to kill him if she intended to do so, but she did not do so and she did not disclose it to others. [50]

(3)  He did not suffer injuries up to the level as required under BOR 3 risk. [51]

(4)  He will have no real risk of being harmed or killed by his mother if he returns to his country. [52]

(5)  There are avenues to seek justice and assistance provided by the NGOs for the LGBT in Madagascar. [54]

(6)  Internal relocation is viable. [55]

9.  For the reasons above, the Board dismissed the applicant’s appeal and affirmed the Director’s Decision.

Application for leave to apply for judicial review of the Board’s Decision

10.  The applicant has filed Form 86 dated 9 June 2025 for leave to apply for judicial review of the Board’s Decision.

11.  In support of his application, the applicant did not raise any specific reason to challenge the Board’s Decision.

DISCUSSION

12.  As mentioned in paragraph 1, this application is late. In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the court has to consider, inter alia, the prospect of success of the intended application. I shall consider the merits of the applicant’s case.

13.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.      

14.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and 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 or procedural unfairness or irrationality in the decision of the Board.”

15.  The applicant has not raised any valid ground to challenge the Board’s findings.

16.  In the circumstances, the applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.

DISPOSITION

17.  I refuse to extend time for the applicant to apply for leave to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.

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