ARSLAN ALI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

Application for Leave to Apply for Judicial Review

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

Following;

1.  Form 86 be amended on the court’s own motion as follows:-

a.  the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office be named as the Putative Respondent; and

b.  the Director of Immigration be named as the Putative Interested Party;

2.  Extension of time to file the application for leave to apply for Judicial Review) be refused; and

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

Observations for the Applicant:

Introduction

1.  By Form 86 filed on 8 April 2021 (the “Form 86”), the Applicant sought 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 27 October 2020 (the “Board’s Decision”).

2.  The Applicant named the Board as both the proposed respondent and interested party. As it is usual practice that the Board should be the proposed respondent whereas the Director of Immigration (the “Director”) should be the proposed interested party, I make an order to amend the Form 86 accordingly on the court’s own motion.

3.  An oral hearing was requested by the Applicant. It took place before me on 22 December 2025 (the “Hearing”) and the Applicant attended in person.

Background

4.  The Applicant’s background, the basis of his claim and the arguments he advanced had been set out in details 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. The basis of his non-refoulement claim is that he would be subject to serious harm or even death at the hands of his adversaries Malik Shahbaz, Habib-Ur-Rehman and their respective associates (the “Adversaries”) if the Applicant were to return to Pakistan because of an investment dispute. He also feared that he would be arbitrarily detained and wrongfully prosecuted for crimes that he did not commit.

The Leave Application is out of time

5.  By virtue of Order 53, rule 4(1) of the Rules of the High Court, Cap 4A, the applicant has to make the Leave Application within 3 months when the grounds for the Leave Application first arose, ie when the Board’s Decision was made. Hence, the deadline for making the Leave Application is 27 January 2021. However, the Form 86 was filed late for about 10 weeks.

6.  In AW v Director of Immigration and William Lam CACV 63/2015 (unreported, 3 November 2015), the Court of Appeal held that the following factors are relevant in determining whether to grant leave to file an application for leave to apply for judicial review out of time: (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. 

7.  In the present case, the delay of about 10 weeks is significant. Contrary to the express instruction in the Form 86, the Applicant did not provide any explanation for the delay in his Form 86 or his affirmation in support. No request was put forward in the Form 86 for time extension.  At the Hearing, the Applicant orally requested the court to consider the Leave Application out of time. He claimed that he did not receive the Board’s Decision in time. However, he cannot recall when he received the Decision as it was long ago. In the circumstances, I am not satisfied that the Applicant has a good reason for the delay in bringing the Leave Application.

8.  I shall now consider the merits which is an important factor on whether I should allow the late filing. If the Leave Application is hopeless, no meaningful purpose can be served by granting leave.

Merits

9.  It is trite law that:-

(1)   Determination of the merits of a non-refoulement claim is essentially within the remit of the Director and the Board, who are the primary decision-makers in the evaluation of the evidence based on the materials available to them.  A court will not usurp their primary decision-making role in a judicial review, which is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh in the absence of any legal error.  A finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

(2)   An applicant, even if unrepresented, is required to properly identify the grounds of judicial review in the Form 86, and to fully and frankly disclose all material facts and potential legal answers, see: Ho Loy & Another v Director of Environmental Protection (HCAL 21/2015, 22 December 2016) per Chow J. (as he was then) at §142.

10.  In the Form 86 and the accompanying supporting affirmation, the Applicant did not advance any grounds in support of the Leave Application. 

11.  At the Hearing, the Applicant said he has nothing else to add to the Leave Application.

12.  Having examined the Board’s Decision, the papers and the evidence with rigorous scrutiny, this court is satisfied that the Board had correctly set out the law and key legal principles relating to all applicable grounds; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness, having regard to the following:-

(1)   In my view, the Board has, in the interest of adopting a high standard of fairness which is appropriate in the circumstances of the present case where no oral hearing was held before the previous adjudicator, adopted a generous approach to the Applicant by relaxing the principles in Devaseelan v Secretary of State for Home Department [2002] UKIAT such that no weight was attached to any previous adverse findings of credibility against the Applicant by previous adjudicator of his torture claim (§30). I do not see any legal error on the part of the Board which puts the Applicant at a disadvantage.

(2)   Even on the relaxed Devaseelan approach, the Board was entitled to find that the Applicant did not raise a credible case of real risk of serious harm or death in Pakistan (§§143-147), having regard to the circumstances, including the following:-

(a)   Without any good reasons, the Applicant had unreasonably refused to complete the Questionnaire for Persons who Have Made Claims under the Convention and submit the same to the Director (§§126-127). The Board was plainly entitled to take into account such conduct in finding the Applicant’s claim to be incredible.

(b)   During the oral hearing before the Board, the Applicant refused to make his witness affirmation and failed to respond to questions posed to him (§128).

(c)   After he entered Hong Kong in October 2012, there was a long unexplained delay of over 4 years and 4 months by the Applicant before he surrendered himself to the Hong Kong authorities to seek non-refoulement protection (§129).

(d)   No documentary evidence was provided in support of the Applicant’s claim and the Applicant was not able to provide any reasonable explanation for such lack of documents (§§132-133).

(3)   In any event, having regard to relevant COI and the personal circumstances of the Applicant, the Board was plainly correct to find that sufficient state protection and reasonable internal relocation alternatives are available to the Applicant as there is no credible evidence to support the Applicant’s bare assertion that the Adversaries would have the means to pursue him throughout Pakistan. It was reasonable that the Applicant could settle in places such as Karachi in Pakistan (§§149-163).

13.  Hence, I am not satisfied that the Board has erred in the enhanced Wednesbury sense. The Applicant’s intended challenge of the Board’s Decision is not reasonably arguable with any realistic prospects of success.  Hence, I see no reason to grant a time extension.

Conclusion

14.  In the premises, I make an order that the Form 86 be amended as described above and the Leave Application be dismissed as it was made out of time.

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