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

HCAL 1764/2021

[2026] HKCFI 1651

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1764 of 2021

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 applicant’s application to amend the Form 86 was granted.

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

3.  The applicant’s 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 30 November 2021, the applicant in his Form 86 applied for leave to apply for judicial review against the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) dated 25 October 2016.

Amendments

2.  Pursuant to the applicant’s request for a hearing of the Leave Application, this court scheduled a hearing on 12 March 2026. The applicant appeared in person. At the hearing, after inquiries from court as to the subject decision of the application, the applicant clarified that the person who prepared the Form 86 for him made a mistake. He had in fact wanted to apply for judicial review (“Leave Application”) against the decision of the Director dated 17 May 2021 (“Director’s Subsequent Decision”) refusing the applicant's request (“Request”) for making a subsequent claim under s.37ZO of the Immigration Ordinance. In an earlier decision of the Director dated 8 January 2015 (“Director’s Earlier Decision”), the Director rejected the applicant’s non-refoulement claim under all applicable grounds[1]. The applicant applied for amendment to Form 86 to reflect his true intention.

3.  In the circumstances, this court would allow the applicant’s application to amend by substituting the decision of the Board with the Director’s Subsequent Decision, and at the same time making consequential amendments by naming the Director as the proposed respondent.

Background

4.  The following background facts were taken from the Director’s Earlier Decision and the Director’s Subsequent Decision:-

5.  After the Director’s Earlier Decision, the applicant appealed to the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) on 20 January 2015. On 17 October 2016, the applicant notified the Board of his withdrawal of the appeal. On 25 October 2016, the Board dismissed the applicant’s appeal upon his withdrawal. The applicant was then repatriated back to Pakistan. On 20 October 2019, the applicant arrived at Hong Kong illegally and was detained in Castle Peak Bay Immigration Center (“CIC”)

6.  The basis of the applicant’s previously rejected non-refoulement was that, if refouled to Pakistan, he would be harmed or killed by an influential property developer called Sheikh due to the money and land dispute after the suspected murder of his father by Sheikh. Additionally, the applicant also faced a risk of arrest by the police after Sheikh framed up a false case against him. The applicant’s Request dated 19 April 2021 was based on his fear of the continuing presence of the risk of harm from Sheikh.

Discussion

7.  The Leave Application operates as a ‘filtering’ process and there is no requirement or expectation to give elaborate reasons for my decision.[2]  It is sufficient to state my observations after considering the Board’s Decision and the applicant’s materials adduced.

8.  In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly[3], and further to make full and frank disclosure of all material facts to be verified by an affidavit. Since the grounds stated in the Form 86 were not directed against the Director’s Subsequent Decision, it can strictly be therefore said that neither the Form 86 nor the supporting affirmation provided any grounds in relation to the Leave Application.

9.  At the hearing, the applicant stated that he had nothing to say and only requested to have his case to be re-opened.

10.  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.[4]

The statutory provisions on subsequent claims

11.  Subsequent non-refoulement claims are regulated by section 37ZO of the Immigration Ordinance (Cap 115), which provides:

37ZO.  “Limitation on subsequent claim

(1)  Except as provided in subsection (2), a person who has previously made a torture claim must not subsequently make another torture claim.

(2)  A person may make a subsequent claim if the person provides sufficient evidence in writing to satisfy an immigration officer that—

(a)  there has been a significant change of circumstances since the previous claim was finally determined or withdrawn; and

(b)  the change, when taken together with the material previously submitted in support of the previous claim, would give the subsequent claim a realistic prospect of success.

(3)  In deciding whether or not a person may make a subsequent claim under subsection (2), an immigration officer may take into account any finding of credibility or fact made by an immigration officer or the Appeal Board in relation to a torture claim previously made by the person.”

12.  The applicant was represented by the Duty Lawyer Service. The lawyer representing the applicant submitted updated information to the Director in support of the Request. The applicant’s evidence was that after he returned to Pakistan, he stayed in the house of his brother-in-law with his family for around one year before he was attacked by two men believed to be Sheikh’s men. He was taken to hospital with bleeding right lower leg and left face as well as a broken wrist. He was discharged on the same day after receiving treatment. After the attack incident, the applicant went to hiding and went to his friend’s house, which was around 2 and ½-hour drive away.

13.  Regarding the disputed land, it was already been sold while he was in Hong Kong previously. As for the framed up case against him, he was told that it was going through the courts but no statement was taken from him. Neither did he attend court while he was in Pakistan.

14.  The Director, having taken into account the Director’s Earlier Decision, found that the applicant had no cogent evidence to support the Request. The Director found that there was no indication that the applicant’s claimed fear from Sheikh was real and imminent. The Director found that the applicant’s delay in making the Request was inconsistent with that of a person who genuinely feared being harmed or killed. Since the disputed land had been sold and that the applicant was not required to either give a police statement or attend court while he was back in Pakistan, the Director found that the enmity between him and Sheikh arose in 2008 should have been dispersed. In conclusion, the Director found that the applicant’s claim of the change of circumstances was not substantiated. The Director found that the Request had no realistic prospect of success, and refused the Request.

15.  Bearing in mind the enhanced standard that should be adopted in scrutinizing the Board’s Decision, this court is satisfied that the Director correctly applied the law and observed a high standard of fairness. The applicant provided no grounds, whether written or oral, in support of the Subsequent Leave Application. The applicant has not shown any errors of law or procedural unfairness or irrationality in the Director’s Subsequent Decision. The applicant’s intended challenge to Director’s Subsequent Decision is not reasonably arguable with realistic prospects of success such that would enable this court to grant leave[5].

Whether to extend time for the late application

16.  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 when the Board’s Decision was delivered. The applicant was late for about 4 and 1/2months.

17.  When the court asked the applicant the reason for the delay, the applicant stated that he was detained in CIC from April 2021 to January 2022. He found it difficult to file the papers. I cannot accept his explanation on account of his detention. Given the fact that he was able to file the Leave Application while he was still in custody, I do not find the explanation constitutes good reason for the delay. In the absence of good reason for the delay, and coupled with the lack of good prospects of success of his intended challenge, I refuse to exercise my discretion to grant the applicant an extension of the time to file the Leave Application out of time.

Orders

18.  The applicant’s application to amend the Form 86 was granted.

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

20.  The applicant’s 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