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

HCAL 2406/2020

[2025] HKCFI 6269

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2406 of 2020

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

	consideration of the documents only;            or
	consideration of the documents and oral submissions by the Applicant in open court;

1.  The Form 86 be amended on the court’s own motion.

2.  There shall be no extension of time given to the applicant to file the application for leave to apply for judicial review out of time.

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

Observations for the Applicant:

Introduction

1.  By a “Notice of application for leave to apply for judicial review” in the prescribed Form 86 filed on 8 December 2020, the applicant applied for leave to apply for judicial review (“Leave Application”). The intended judicial review was against the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) dated 7 July 2020 (“Board’s Decision”) dismissing the applicant's appeal against the decision of the Director of Immigration (“Director”) dated 24 September 2018 (“Director’s Decision”) rejecting the applicant's non-refoulement claim on all applicable grounds except the risk torture ground which had been previously dismissed by the Director on 23 August 2013. The Board’s Decision can be viewed at the following hyperlink: -

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL002406_2020_files/the_Board's_Decision.pdf

2.  In the Form 86, the applicant named the “Hong Kong Immigration Appeal Board” as the proposed respondents and interested parties. As the Board should have been the proper proposed respondent and the Director the interested party, the Form 86 will be amended accordingly on the court’s own motion.

3.  The basis of the applicant’s claim was that, if refouled to Tanzania, he would be harmed or killed by members of the Chama Cha Mapinduzi party and the police as the applicant was an active member of the opposition party, the Civic United Front. The Board’s reasoning and findings were set out in detail in the Board’s Decision and it is not necessary for me to repeat them. Unless otherwise specified, I shall also adopt the Board’s abbreviations and descriptions stated in the Board’s Decision.

4.  At the applicant’s request for a hearing of the Leave Application, this court scheduled a hearing on 2 December 2025. The applicant attended the hearing in person. After having heard from him, this court informed him that the decision would be reserved, and be sent to his updated address.

Discussion

5.  The Leave Application operates as a ‘filtering’ process and there is no requirement or expectation to give elaborate reasons for my decision.[1] It is sufficient to state my observations after considering the Board’s Decision and the applicant’s materials adduced.

6.  In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly[2], and further to make full and frank disclosure of all material facts to be verified by an affidavit. The Form 86 and the supporting contained provided no such grounds at all.

7.  At the hearing, this court asked the applicant whether he had any grounds he wished to submit in support of the Leave Application. The applicant said that he would do everything he was asked to do, but he had nothing to add. Since there was a CD ROM exhibited to the supporting affirmation, the court asked the applicant how he was going to rely on it. The applicant said that he never listened to it. He remembered that when he tried to listen to it, he could not play the CD. He believed that it was provided by the Board. Since he did not know the contents of the CD, he said he would not rely on it. In the circumstances, the court would disregard the CD attached to the supporting affirmation.

8.  As the Courts have repeatedly stated, 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.[3] In the present case, the Board found that the applicant was not a credible or reliable witness. The Board found that the applicant’s evidence concerning the core of his claim was vague and incredible. The Board also found that the video and the newspaper cuttings that the applicant produced were either irrelevant or of doubtful authenticity. Hence, it attached no weight to them. The Board therefore concluded that the applicant would not face any risks of harm if refouled. These are findings of fact, which the court in a judicial review will not interfere with, subject to there being any public law errors.

9.  Bearing in mind the enhanced standard that should be adopted in scrutinizing the Board’s Decision, this court is satisfied that the Board correctly applied the law relating to all the grounds and observed a high standard of fairness. I am satisfied that the Board was entitled to reach the conclusion that the applicant would unlikely face risk of harm after having rejected the centerpiece of the applicant’s evidence. The applicant has not shown any errors of law or procedural unfairness or irrationality in the Board’s Decision. The applicant’s intended challenge to the Board’s Decision is not reasonably arguable with realistic prospects of success such that would enable this court to grant leave[4].

Whether to extend time for the late application

10.  Another matter I need to consider is the delay. Pursuant to O 53 r 4(1) of the Rules of the High Court, an application to apply for judicial review shall be made promptly and in any event within 3 months from the date of the Board Decision. The applicant was late for about 2 months, which is not short.

11.  When asked to explain for the delay, the applicant gave some vague replies alluding to the fact that he had changed address and that he could not remember when he received the letter from the Board. I do not accept the applicant had provided any good reason for the delay. In any event, given the conclusion this court has reached regarding the lack of merits, I refuse to exercise my discretion to allow an extension of time for the applicant to file the Leave Application.

Orders

12.  The Form 86 be amended on the court’s own motion.

13.  There shall be no extension of time given to the applicant to file the application for leave to apply for judicial review out of time.

14.  The application for leave to apply for judicial review is 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