HASSAN BILAL v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 282/2021

[2026] HKCFI 2121

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 282 of 2021

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 oral submissions by the Applicant in open court.

1.  Extension of time to apply for leave to apply for judicial review be refused; and

2.  Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 4 March 2021 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 16 July 2020 (the “Second Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Further Decision (the “Further Notice”) dated 22 March 2017 refusing his application for non-refoulement protection under BOR 2 Risk ground.

2.  The Applicant is a Pakistani national, now aged 33. He arrived in Hong Kong from Macau on 17 December 2013 and launched a torture claim by written signification. His claim was assessed and rejected by the Director under Torture Risk[1], BOR 3 Risk[2], and Persecution Risk[3] grounds by his Notice of Decision (the “Notice”). His appeal against the Director’s Notice was dismissed by the Board’s decision dated 23 February 2017 (the “First Decision”). His claim under BOR 2 Risk[4] ground was also rejected by the Director’s Further Notice and his appeal against that Further Notice was dismissed by the Board’s Second Decision. He now seeks leave to apply for judicial review of the Board’s Second Decision; but he did not seek leave to apply in respect of the First Decision, which is now final.

3.  The Applicant’s personal background, the basis of his non-refoulement claim under Torture Risk, BOR 3 Risk, and Persecution Risk grounds, the arguments he advanced, the finding of the Board and the reasons for its Decision are set out in details in the Board’s First Decision, while those under and BOR 2 Risk ground are set out in the Board’s Second Decision. The hyperlink to the Board’s First Decision and Second Decision are included below[5] for reference. These will not be repeated in here. In gist, he claims he will be harmed or killed, if returned to Pakistan, by members or supporters of the Pakistan Muslim League (N) (the “PML(N)”) for refusing to join their political party.

Filing out of time

4.  An application for judicial review can only be made with leave granted pursuant to section 21K(3) of the High Court Ordinance and Order 53, rule 3(1) of the Rules of the High Court (“RHC”). Order 53, rule 4(1) provides that such leave application must be made promptly and in any event “within three months from the date when grounds for the application first arose.” Usually, an application made three months after the date of the decision sought to be reviewed is deemed not to have been made promptly. This leave application was filed more than seven and a half months after the date of the Second Decision sought to be reviewed. It was filed more than four and half months out of time. He has offered no explanation for the inordinate delay. In H and Director of Immigration[6] and AH and Director of Immigration[7], the Court of Final Appeal held that where the court considers that there is no good reason for extending the period, it will refuse leave to apply for judicial review.

5.  In AW and Director of Immigration and William Lam[8], the Court of Appeal held that the following factors are relevant in determining whether good reason is shown for extending the period to apply for judicial review: (1) length of the delay; (2) explanation for the delay; (3) merits of the substantive application; (4) prejudice to the applicant if leave is refused vis-à-vis that to the respondent and public administration if leave is granted; and (5) whether the application raises any questions of general public importance, and whether those questions are likely to have to be resolved by the courts in any event. Usually, the first three factors, particularly merits, are most crucial and determinative. If the sum total of these three factors are in favour of granting extension, the court would be more relaxed with the remaining two. Conversely, if it is against the granting of extension, there is no need to consider the remaining two factors. However, where an application is many months out of time, leave may be refused “however strong the complaint might otherwise be”, see Po Fun Chan v Winnie Cheung[9], per Litton PJ. The delay in this case is so substantial that leave may be refused on the ground of delay alone without considering the merits of the substantive application. Nevertheless, for completeness the Court proceeds to assess the merits of his leave application for the dual purpose of determining whether to grant extension of time to file the leave application and whether to grant leave to apply for judicial review, if extension of time was granted.

Legal principles applicable to judicial review

6.  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[10].

Grounds for judicial review

7.  The Applicant did not advance any grounds for judicial review in his Form 86. The ground as advanced in his supporting affirmation is that the Board disregarded his dangerous situation. He annexed a copy of the Board’s First Decision and Second Decision. In substance, he is challenging the Board’s finding of fact in its First Decision and Second Decision, this is impermissible save for errors of law, procedural unfairness and irrationality in the Decision.

8.  At the hearing on 19 January 2026, after the legal principles in the above section were explained to him, he confirmed he had no complaint about errors of law, procedural unfairness or irrationality in the Decision. He repeated his risks and fears returning to Pakistan.

9.  In the absence of proper grounds or grounds with adequate particulars, the Court in an application for leave to apply for judicial review could only focus its attention on these elements in its anxious scrutiny of the Decision.

Overall scrutiny

10.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles applicable to non-refoulement protection under the Unified Screening Mechanism; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness.

11.  In essence, the Applicant is seeking to challenge the Board’s finding of fact in its two Decisions under the guise of judicial review. In the First Decision, the Board found multiple and significant inconsistencies among his evidence in his written signification, his non-refoulement claim form, record of screening interview and his testimony before the Board. The Board was not persuaded even to the low standard applicable that he was giving a truthful or reliable account of the events on which his claim for protection was based. It was not satisfied that the Applicant had at any stage been subjected to realistic threats that he would be killed if he did not join the PML(N) or that there was a real chance that he will suffer any form of serious harm or ill-treatment which would amount to persecution or which would be within the meaning of ‘torture’ under section 37U of the Immigration Ordinance, if refouled. Insofar as the First Decision is concerned, all these findings are final. The Applicant had also not sought a review of the First Decision. It is not open to the Applicant to seek a review of these findings of the Board in its First Decision. Even putting all these technicalities aside, this Court is satisfied that the Board had assessed the evidence carefully and tested it against common sense and inherent probability. On the evidence, it was open to the Board to make the findings as it did. It is not open to this Court to intervene by way of judicial review.

12.  In the Second Decision, the Board referred to its finding in the First Decision and the absence of evidence in support of the claim under BOR 2 Risk ground. The Applicant had adduced no evidence, not even a faint or vague suggestion that a death sentence had been passed on him or that the situation in Pakistan was so dire that returning him to Pakistani would put his life at risk of arbitrary deprivation. There was simply no evidence to support a claim for BOR 2 Risk ground. Hence, the Board was not persuaded, even to the low standard applicable, that there is a real risk, or real chance that the Applicant would be arbitrarily deprived of his life by anyone, in contravention of BOR 2, if he is refouled back to Pakistan. This is a mixed finding of fact and of the law, essentially the former because of its finding of fact in the First Decision and the absence of supporting evidence for a claim under BOR 2 Risk ground. There was simply no evidence in support of the claim under this ground. This is a finding of fact, which is exclusively within the realm of the Board, which the Court on a judicial review will not interfere, save when such finding was made as result of error of law or procedural unfairness or irrationality in the Decision. The Court could detect no error of law or procedural unfairness in the Decision. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. Basically, there was no evidence to support a claim under that ground. The Applicant has failed to discharge his burden of proof. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success.

Conclusion

13.  In view of the inordinate delay, the absence of a reasonable explanation for the delay and the lack of prospect of success in the intended judicial review, extension of time to file the leave application and the Applicant’s leave application are refused.

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