SHIEKH AFTABUDDIN v. DIRECTOR OF IMMIGRATION

HCAL 3542/2019

[2025] HKCFI 5069

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 3542 OF 2019

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 interested party be deleted. 

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 29 November 2019, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Director of Immigration (“the Director”) dated 31 December 2013 (“the Director’s Decision”).

2.  The applicant made a torture claim under Part VIIC of the Immigration Ordinance, Cap 115, Laws of Hong Kong (“the Ordinance”) by a written representation dated 27 March 2009.

3.  After consideration of the applicant’s torture claim, the Director was not satisfied that there were substantial grounds for believing that the applicant would be in danger of being subjected to torture in India if refouled there. Hence, the Director rejected the applicant’s torture claim and notified the applicant of his decision by way of a Notice of Decision in the form of a letter dated 31 December 2013, ie the Director’s Decision.

Amendments

4.  The applicant named the Director as both the putative respondent and the putative interested party in Form 86.

5.  However, as the present Leave Application is only in respect of the Director’s Decision and the Director has already been named as the putative respondent, it is not necessary to name the Director as the putative interested party.

6.  Thus, this court makes an order on its own motion to delete “The Director of Immigration” as the putative interested party.

The applicant’s case

7.  The applicant claimed for non-refoulement protection on the ground of torture risk because if returned to India, he believed he would be harmed or killed by his creditor Muhammad Nasiruddin (“MN”) who was a supporter of the Communist Party of India (Marxist) (“CPIM”), as he failed to repay the money owed to MN.

Late application

8.  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 Director’s Decision was made.

9.  However, the applicant filed Form 86 on 29 November 2019, which was more than 5 years and 10 months after the Director’s Decision (made on 31 December 2013). The applicant was hence late for more than 5 years and 7 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.

10.  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.

11.  The applicant did not make any application for extension of time when he filed the Leave Application. He merely stated in Form 86 that “At that time I wanted to go back to India and I did not appeal against this decision”.

12.  At the oral hearing before this court on 7 August 2025, the applicant confirmed that the Leave Application was made in respect of the Director’s Decision. When this court asked the applicant for the reason for the delay, he merely said that he wanted to go back to India after the Director’s Decision was made. However, he later changed his mind after he received a call from home and his problem was still there. Moreover, he did not have any children back then. He did not want to go back home after his children were born as he believed his children would be kidnapped if they were to return to India with him.

13.  A delay of more than 5 years and 7 months is very substantial and the explanation given by the applicant is not satisfactory. Even assuming what he said about changing his mind after making an application to go back to India was true, it still could not explain away the very significant delay in making the Leave Application.

14.  Moreover, as discussed below, there is no merits of the intended judicial review at all. Thus, this court is not prepared to extend the time for the applicant to file the Leave Application, even if an application for extension of time was made. The Leave Application can be dismissed on the ground of being made out of time alone.

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

Oral hearing

16.  The applicant requested for an oral hearing of the Leave Application. His case was heard on 7 August 2025.

17.  At the hearing, when this court asked the applicant to elaborate the grounds for his intended judicial review, which were stated in two documents annexed to his supporting affirmation dated 29 November 2019, he first replied that he did not remember what he had written. After the documents containing the grounds were shown to him, the applicant said that he did not want to elaborate on the grounds.

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.  The applicant annexed to his supporting affirmation two documents titled “Grounds on which relief is sought” and “Grounds of the application” respectively, which contained some grounds for his intended judicial review. However, he failed to elaborate on the grounds at the oral hearing.

20.  The grounds that were contained in the document titled “Grounds on which relief is sought” are reproduced as follows:-

“The respondent is in breach of procedural fairness in the following parts:-

1. The applicant don’t want to return back to his home country and he applied to not return back to India. The respondent had unlawfully fattered his/her discretion by refusing the applicant’s application of not returning back to his home country.

2. The respondent failed to meet the greater care and duty owned to a self-represented claimant.

3. The respondent’s decision to refuse the applicant’s application of not returning back to India and the applicant’s claim for Torture Risk in India were unreasonable or irrational in the pubic law sense, or are a result of procedural errors or

4. The Immigration officer acted in a procedural unfair manner in dealing with applicant’s claim and with the applicant’s application of not returning back to India.”

21.  The contents of the document titled “Grounds of the application” are reproduced as follows:-

“The applicant don’t want to return back to his home country at this moment because of his severe problem in his home country. The Director of Immigration or the case officer of the applicant’s Torture Claim made a decision on 31 December 2013 by ruling that the applicant failed to establish his claim. After this decision, the duty lawyer of the applicant explained him in the wrong way and the applicant decided to return back to his home country. After long time the Immigration officer didn’t send him to India and the applicant was in anxiety about his life, so he decided not to return back to India. He submitted the application to the Immigration officer, but the Immigration officer rejected his application and told him to go back to India. The applicant has still severe problem in india. If he return back to india he will be killed by his enemy.

The Immigration officer didn’t give him the appeal form, so he could not appeal to the Torture Claims Appeal Board at Wan Chai.”

22.  As aforesaid, the applicant did not elaborate on any of the grounds he put forward in these two documents at the oral hearing before this court on 7 August 2025.

Discussion

23.  First of all, torture claims are processed in accordance with the provisions of Part VIIC and Schedule 1A of the Ordinance.

24.  The Ordinance provides a two-tier administrative structure for the processing of torture claims. The first tier is by an immigration officer and the second tier by a member of the Torture Claims Appeal Board (“the Board”) who is often a legally qualified person and may be a former judge or magistrate.

25.  The Court of Appeal has fully canvassed this two-tier process in Re Moshsin Ali [2018] HKCA 549. Once the applicant has invoked the established statutory procedures of appeal from the Director to the Board, the Director’s decision would be superseded by the Board’s decision and would no longer be susceptible to judicial review.

26.  Hence, there is statutory process in place where aggrieved claimants may appeal against the decisions of the Director in refusing their non-refoulement claims to the Board.

27.  The fact that the applicant chose not to invoke the administrative appeal process to the Board does not automatically entitle him to challenge the Director’s Decision directly by way of a judicial review.

28.  Furthermore, the applicant’s grounds contained in the document titled “Grounds on which relief is sought” are general accusations that the Director’s Decision was unreasonable and irrational, the Director was procedurally unfair, and the Director failed to meet the greater care and duty owed to a self-represented claimant, etc. These complaints without specificity cannot assist the applicant to challenge the Director’s Decision either.

29.  As held by the Court of Appeal in Re Salim Ahmed alias MD Salim [2020] HKCA 244, “general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case”. Thus, none of the grounds in the document titled “Grounds on which relief is sought” could establish any valid ground to challenge the Director’s Decision when they are so vague and general without any requisite particulars related to the applicant’s case.

30.  As to the complaints raised in the document titled “Grounds of the application”, the applicant mentioned that the duty lawyer explained to him in the wrong way after the Director’s Decision was made. However, the applicant failed to provide details as to what had been explained wrongly to him, or how any wrong explanation had prejudiced him. In any event, his own lawyer’s wrong explanation to him had nothing to do with the Director and could not be a ground to challenge the Director’s Decision.

31.  The applicant’s last accusation, namely that the immigration officer did not give him the appeal form so he could not appeal to the Board, was completely unfounded. As can be seen from the last paragraph of the Director’s Decision, the applicant was advised of the appeal procedures to the Board and the time limit for filing a notice of appeal. A copy of the notice of appeal was enclosed with the Director’s Decision and the address of the Board was also given to the applicant.

32.  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 primary decision maker’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).

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

34.  In assessing the appeal by the applicant, the Director had taken all the applicant’s claims into consideration.

35.  As can be seen from the Director’s Decision, the Director gave very full and detailed reasoning for rejecting the applicant’s torture claim. Even taking the allegations that the applicant had made at their highest, the alleged threats and assaults did not amount to “torture” as defined under section 37U of the Ordinance. There was no severe pain or suffering caused by MN, and the applicant’s dispute with MN was only a personal and financial one, which had no official involvement and did not involve the consent or acquiescence of a public official or any person acting in an official capacity.

36.  Furthermore, the Director concluded after careful evaluation of the applicant’s case and extensive country of origin information that the Indian authorities were willing and able to offer sufficient protection to its citizens by taking actions against police officers who had breached the law. The Director did not accept that reasonable state protection would not be available to the applicant if resorted to.

37.  The Director also found from the applicant’s own evidence that the dispute between him and MN was originated in his home village. There was no evidence to support that MN, being a private businessman and thus a non-state agent, was so powerful and resourceful to exert his influence all over India to locate and harm the applicant. The Director considered that it would not be unduly harsh for the applicant, being an able-bodied adult, to relocate to an area other than his home village, such as Mumbai, to avoid any real risk of harm, upon his return to India if there was such a need.

38.  Thus, the applicant’s alleged danger in returning to India was fully assessed but rejected by the Director.

39.  As mentioned, the finding of facts was solely within the ambit of the primary decision makers. The Director was entitled to make its decision. This court finds nothing wrong or unreasonable in the way the Director reached its conclusion.

40.  Having rigorously examined the Director’s Decision and the evidence with anxious scrutiny, this court is satisfied that the Director had correctly set out the law and key legal principles relating to torture claims, the burden of proof and the standard of proof. The Director 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 Director’s Decision. The Director’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Director to reach its decision.

41.  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

42.  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