IQBAL QAISAR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 170/2021

[2025] HKCFI 5624

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 170 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 the Applicant being absent in open court;

1.  Form 86 be amended as follows:- (1) the Director of Immigration be named as the Putative Interested Party; and (2) the date of the decision in respect of which relief is sought be amended to 12 November 2020.

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

Observations for the Applicant:

Introduction

1.  By Form 86 filed on 18 February 2021 (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 18 December 2020. This Court is not aware of any decision issued by the Board on 18 December 2020. The Board issued a decision in respect of the Applicant’s claim on 12 November 2020 (the “Board’s Decision”). I believe the Applicant was mistaken about the date, and accordingly I make an order to amend the Form to correct the date of the decision.

2.  In the Form, the Applicant named the Board as both the proposed respondent and the proposed interested party. As it is trite that the Board should be the proposed respondent and the Director of Immigration (the “Director”) should be the proposed interested party in an application of this sort, I also make an order to amend the Form in this regard on the Court’s own motion.

3.  The Applicant requested an oral hearing for the Leave Application. The hearing took place on 20 October 2025 but the Applicant did not attend the hearing. Notice of Hearing was issued to the Applicant on 2 October 2025 at the address provided by the Applicant on the Form. On 16 and 17 October 2025, attempts were made to contact and remind the Applicant of the hearing by phone at the number provided by the Applicant on the Administrative Form and on Form No. 8 but in vain.

4.  After the hearing, the Court was informed by the Immigration Department of another address provided by the Applicant. However, the Applicant has not filed any change of address to the Court to date. It is the duty of a litigant to give the court an address to which correspondence or notice can come to his attention in a timely manner. The consequence of any delay or failure occasioned by the ineffectiveness of such an address would fall on the shoulder of the litigant (Re Hasmi Rizwan Imran [2018] HKCA 439, at §15).

5.  As proper notice was given to the Applicant in respect of the hearing at the address provided by the Applicant to the Court, I consider it appropriate to proceed with the Leave Application in the absence of the Applicant.

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 Board’s Decision was issued on 12 November 2020. The Form was however only filed on 18 February 2021. The Leave Application was accordingly filed out of time for a few days.

8.  No application for extension of time to file the Leave Application was made by the Applicant. There was no explanation for the delay in either the Form or the supporting Affirmation.

9.  In considering whether to extend the time for applying for leave for judicial review, the Court shall have regard to, inter alia, the following:- (a) the length of the delay; (b) the explanation of the delay; (c) the merits of the substantive application; (d) the prejudice; and (e) the question of general public importance: Re Thomas Lai [2014] 6 HKC 1, at §§43-45; AW v Director of Immigration and William Lam CACV 63/2015, 3 November 2015, at §27.

10.  In the present case, the delay was relatively short although there is no explanation for the delay. The Court will be prepared to grant indulgence if the Leave Application is meritorious. I shall accordingly proceed to consider the merits of the Leave Application.

11.  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 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)

12.  In the Form, the Applicant did not provide any grounds in support of the Leave Application. In the supporting Affirmation, the Applicant simply stated that he is not satisfied with the Board’s Decision, and that his life is not safe in his country.

13.  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 was entitled to reject the Applicant’s claims based on the evidence and the reasons provided (§§21-169 of the Board’s Decision). This is particularly so given the Applicant had failed to attend the hearing before the Board without any explanation (§§18-20 of the Board’s Decision). As such, the Board could not ask the Applicant questions to address its concerns on the Applicant’s claims. I do not see any errors committed by the Board. 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.

14.  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

15.  As the challenge to the Board’s Decision is not reasonably arguable, I would have refused to grant an extension of time even if the Applicant made such application. For completeness, the Leave Application would be refused in any event even if it was filed within time based on the reasons stated above. In the premises, I make an order that that the Form be amended as described above 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