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HCAL 624/2021
[2026] HKCFI 921
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 624 of 2021
BETWEEN
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Hira Ahmad |
Applicant |
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
Putative Respondent |
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Director of Immigration |
Putative Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)
Following:
Order by Deputy High Court Judge (Non-refoulement Claims) Jeffrey Chau:
1. The Applicant’s application for extension of time to file the application for leave to apply for judicial review be refused.
2. The application for leave to apply for judicial review be dismissed.
Observations for the Applicant:
Introduction
1. By a Form 86 dated 4 May 2021 (the “Form 86”), the Applicant applied for leave to apply for judicial review against the decision by the Torture Claims Appeal Board (the “TCAB”) dated 19 November 2020[1] (the “TCAB Decision”), which affirmed the decision of the Director of Immigration (the “DOI”) dated 24 October 2018.
2. The Applicant requested for a hearing of this application. He was absent. I see no irregularity in the notification process.
Background
3. The Applicant is a national of Bangladesh. In gist, he fears that he will be harmed or killed by his enemies who are affiliated with the ruling party, Awami League. The Applicant’s personal background, the relevant facts and relevant procedural history have been sufficiently set out in the TCAB Decision, which can be viewed through a hyperlink[2]. I shall therefore not repeat them. Unless otherwise specified, TCAB’s abbreviations and descriptions are adopted herein.
Legal Principles
4. The leave application operates as a filtering process and there is no requirement or expectation to give elaborate reasons for my decision: Re Zunariyah [2018] HKCA 14 at [23]. It is sufficient to state my observations after considering the TCAB Decision and the materials adduced by the Applicant.
5. I remind myself that in a judicial review, this court does not provide a further avenue of appeal. While I also remind myself that in non-refoulement cases, I would adopt an enhanced standard in scrutinizing the decision of the TCAB given the seriousness of the issue at hand, this court would not usurp the role of the TCAB, which together with the DOI are the primary decision-makers. A finding of fact is exclusively within the realm of the TCAB, and this 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 TCAB: Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(1)]. There must be a reasonably arguable case with a realistic prospect of success before leave for judicial review will be granted: Peter Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.
6. In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly: Ho Loy v Director of Environmental Protection (unreported, HCAL 21/2015, 22 December 2016) at [142], and further to make full and frank disclosure of all material facts to be verified by an affidavit.
7. Given RHC O. 53 r. 4(1) and s. 21K(6) High Court Ordinance (CAP. 4A),where an Applicant applies for leave to apply for judicial review more than 3 months after the decision:
a. The failure to apply within 3 months constitutes “undue delay”. To justify an extension of time in which to apply for leave, the Applicant must show “good reason” to extend time. In deciding this, certain factors that are likely to be significant are (i) the length of the delay (ii) the explanation for the delay[3] (iii) the merits of the substantive application[4] (iv) prejudice, and (v) whether the application raises questions of general public importance;
b. Where the court considers that there is no good reason for extending the period, it will refuse leave to apply for judicial review. The refusal of an extension of time is part and parcel of a refusal to grant leave to apply. It is not the case that the court refuses the extension of time as a discrete decision and then makes no decision on the question of leave to apply for judicial review, treating this as a separate matter entirely;
c. If the court is satisfied that there is good reason for extending the period, it does not follow that leave to apply for judicial review will automatically be given. While the court might grant leave, it retains a discretion to refuse to do so and the existence of a good reason for undue delay is only one facet of the question, others including sufficiency of interest and the need to satisfy the arguability test. Leave may also be refused on the basis that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration; and
d. Even if leave to apply is granted, the issue of undue delay on the part of the applicant may be raised again at the substantive hearing of the judicial review application. That is a separate consideration of whether relief should be refused on the basis that the court thinks that relief would be likely to cause substantial hardship or prejudice to the rights of another or be detrimental to good administration.
See Thing Sunil v TCAB [2025] HKCFI 4366, at [9], citing AW v Director of Immigration & anor. [2016] 2 HKC 393 (CA) at [23 to 36], Thomas Lai [2014] 6 HKC 1 at [43 to 45] as also cited in AW, supra), and H v Director of Immigration (2020) 23 HKCFAR 248 at [17-22, 36-44] citing inter alia both AW and Thomas Lai. See also Re Hariatiningsih [2021] HKCFI 1194 at §§12-13, 16-19 citing the aforesaid, upheld in [2022] HKCA 1321.
Discussion
8. The Application was out of time for slightly less than 3 months.
9. For the reasons stated below, applying the well-known principles stated above, I decline the request to extend time.
10. First, the Applicant has not explained the delay.
11. Secondly, I am not satisfied that the Applicant’s intended application for judicial review of the Board’s Decision is reasonably arguable with any realistic prospects of success (see Peter PoFunChan v Winnie Cheung & Another (2007) 10 HKCFAR 676), and I would have dismissed the present application even if it had been brought within time.
12. No grounds on which the relief is sought are stated, and hence there are no grounds which point to any error of law, procedural unfairness or irrationality of the TCAB Decision in the Form 86.
13. As can be seen from the TCAB Decision, the TCAB took into account all the evidence available and found that on the basis of the same, applying the correct legal principles in respect of all applicable grounds[5] under the Unified Screening Mechanism, the Applicant’s allegations were insufficient to make out any of the applicable grounds [37-57]. In gist, the TCAB rejected the Applicant’s evidence as the number and nature of inconsistencies and implausibility in his evidence were serious and have undermined its reliability. The TCAB found the Applicant to be dishonest, unreliable and not a genuine claimant [33]. The TCAB was perfectly entitled to come to this conclusion in view of the evidence [30]. Without any credible factual foundation, the Applicant’s appeal below was bound to fail.
14. All in all, I do not see any errors of law, procedural unfairness or irrationality in the TCAB Decision, despite rigorous examination and anxious scrutiny. I would have dismissed the application in any event.
15. Third, an extension of time for an unmeritorious application such as the present one, coupled with the gross delay, would result in further undue delay, prove prejudicial, and undermine the orderly conduct and progress of the refoulement process.
16. In light of the foregoing, no extension of time is granted and the application is dismissed.
Dated the 16th day of February 2026
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(Annson Cheung) |
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for Registrar, High Court |
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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must: |
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)). |
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Sent to the Applicant
on 16/2/2026
Hira Ahmad
Applicant’s ref. no:
Nil. |
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 16/2/2026
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 14265/18/11/108/B1661
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 3693/18 (formerly RBCZ/2001766/14)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] In the Form 86, the decision in respect of which relief is sought is stated to be dated 11 March 2020. It is tolerably clear that this is a typo, as the supporting affirmation stated that it would attach the “decision of torture claims appeal board” (although the attachment is also incorrect).
[2] https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2021/HCAL000624_2021_files/the_Board's_Decision.pdf
[3] In that the presence of a credibly valid explanation for the delay will strengthen, and the absence of an acceptable explanation will weaken, the Applicant’s request for what is an indulgence to be granted in the court’s discretion.
[4] Although where an applicant is many months out of time, leave may be refused however strong the complaint might otherwise be, and an applicant who sleeps upon his rights may be barred from pursuing them in a judicial review even though he may have a meritorious case (AW v Director of Immigration & anor. [2016] 2 HKC 393 (CA) at §27(iii) as approved in the other cases cited below, in particular H v Director of Immigration (2020) 23 HKCFAR 248 at supra at §37(2)).
[5] Other than risk of torture under Part VIIC of the Immigration Ordinance, Cap 115
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