NAZ FALAK v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1515/2022

[2026] HKCFI 3163

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1515 of 2022

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following;

1.   The stay under section 15(4) of the Legal Aid Ordinance (Cap. 91) be uplifted forthwith.

2.   The Applicant’s application for adjournment be refused.

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

Observations for the Applicant:

Introduction

1.  By Form 86 filed on 16 December 2022 (the “Form”), the Applicant applied for leave to apply for judicial review (the “Leave Application”) against the decision of the Torture Claims Appeal Board / Non‑refoulement Claims Petition Office (the “Board”) dated 16 November 2022 (the “Board’s Decision”).

2.  The Applicant requested an oral hearing for the Leave Application.  The hearing was scheduled to take place on 11 May 2026.  On 4 May 2026, the Applicant wrote to the Court and sought adjournment of the hearing on the basis that he had applied for legal aid on the same day.  On 6 May 2026, the Court gave direction that the hearing on 11 May 2026 would proceed as scheduled, and the Applicant should explain to the Court the delay in applying for legal aid.

3.  The hearing took place on 11 May 2026 and the Applicant attended in person.  When asked about the delay in applying for legal aid, the Applicant simply said he did not know he could apply for legal aid before. 

4.  I do not accept the Applicant’s explanation.  First, the explanation was not given on oath.  I note that in the letter dated 4 May 2026, the Applicant did not provide any reason for the delay in applying for legal aid.  Second, the Leave Application was filed on 16 December 2022, and the Applicant only applied for legal aid on 4 May 2026, i.e. shortly before the hearing for the Leave Application.  If the Applicant was serious about the Leave Application, there is no reason why he would not have found out that he could apply for legal aid during the 3.5-year period.  Third, and more importantly, as will be demonstrated below, the Leave Application is plainly unmeritorious.  The Applicant has not even provided any grounds in support of the Leave Application. 

5.  In the premises, I consider that the last-minute application for legal aid was a tactical move by the Applicant for the sole purpose of delaying the Leave Application.  Notwithstanding section 15(4) of the Legal Aid Ordinance (Cap. 91), I consider it appropriate that the stay be uplifted forthwith to avoid further delay of the proceedings.  I refuse to grant any adjournment.

Background

6.  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

7.  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 of Immigration (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)

8.  The Applicant did not provide any grounds in support of the Leave Application on the Form.  In the supporting Affirmation, the Applicant simply stated that he did not agree with the Board’s Decision, and he attached a copy of the Board’s Decision to the Affirmation.  Further, at the hearing on 11 May 2026, this Court specifically pointed out to the Applicant that there were no grounds provided in support of the Leave Application.  In response, the Applicant simply said he had nothing to add.

9.  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 find the Applicant’s case implausible and unreliable, and thus rejected his claims (§§41-79 of the Board’s Decision).  I see no errors in the Board’s reasoning.  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 of the Board’s Decision is reasonably arguable with any realistic prospects of success. 

10.  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

11.  In the premises, I make an order that the stay under section 15 of the Legal Aid Ordinance (Cap. 91) be uplifted forthwith, the Applicant’s application for adjournment be refused, and the Leave Application 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