KHIRALLAH WASSIM v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 192/2021

[2025] HKCFI 5915

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 192 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
	cconsideration of the documents and the Applicant being absent in open court;

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

2.   There shall be no extension of time be granted to the applicant to file the Form 86 out of time.

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

Introduction

1.  By a “Notice of application for leave to apply for judicial review” in the prescribed Form 86 filed on 22 February 2021, 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 19 July 2019 (“Board’s Decision”) dismissing the applicant's appeal against a decision of the Director of Immigration (“Director”) dated 24 July 2017 (“Director’s Decision”) rejecting the applicant's non-refoulement claim on all applicable grounds.  The Board’s Decision can be viewed at the following hyperlink: -

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2021/HCAL000192_2021_files/the_Board's_Decision.pdf

2.  The basis of the applicant’s claim was that, if refouled to Tunisia, he would be harmed or killed by the members of Ennahda Movement, ISIS and the ruling party, Al Nida. 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.

3.  Pursuant to the applicant’s request for a hearing of the Leave Application, this court scheduled a hearing on 11 November 2025.  A notice of hearing with a reminder[1] of the consequence of absence dated 13 October 2025 was sent to the applicant’s last known address by ordinary post.  The applicant did not turn up at the hearing.  Before the hearing on the day of the hearing, several phone calls were made to the applicant’s given telephone number but to no avail. The information before this court shows that the said notice of hearing has not been returned undelivered through the post.

4.  In the circumstances, this court will dispose of the Leave Application according to the materials already placed before the court.

Discussion

5.  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.

6.  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.   

7.  The applicant did not provide any grounds in the Form 86. In the supporting affirmation, the applicant referred to a letter in which the applicant gave an explanation for the delay.

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.[4] In the present case, the Board found the applicant’s evidence lacked credibility and could not find the centrepiece of his story to stand. The Board also found that the applicant failed to prove that he was a member of the SDP, which ideologies did not appear to be inconsistent with the Movement or the AL Nida. The Board also found that the applicant had not been harmed or threatened by anyone.    Thus, the Board concluded that there was no real risk of harm if the applicant were refouled.  The Board also found that state protection and internal relocation would be viable.  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. The applicant advanced no grounds at all in support of the Leave Application. Hence, 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[5].

Whether to grant extension of time

10.  More importantly, there is a substantial delay in the Leave Application. 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 Decision first arose. Hence, the deadline for the filing of the Leave Applicant expired on 19 October 2019. This application is late for almost 1 and ½ year.

11.  Before considering whether I should exercise my discretion for an extension of time, I should have regard to, among others, (i) the length of the delay; (ii) the reason for the delay; and (iii) the prospect of success of the intended challenge.  The present delay is significant and inordinate. Very good reason is required to explain for the delay.

12.  According to the applicant’s explanation set out in the letter exhibited as “Exhibit B” to the supporting affirmation, the applicant stated that he was only aware of the Board’s Decision on 21 January 2021 after he had gone to the Board on 14 January 2021 to inquire about the result of his appeal against the Director’s Decision. He said he was shocked in knowing that the Board rejected his appeal after the expiry of the time limit of 3 months.  He said that he had checked the letterbox regularly but he could not find the Board’s Decision.

13.  The applicant’s given reason for the delay was a bare assertion, and this court rejects it.  The period of delay is substantial. In view of the lengthy delay, the absence of good reason for the delay, and importantly, the lack of merits, I refuse to exercise my discretion to grant any extension of time.

Orders

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

15.  There shall be no extension of time be granted to the applicant to file the Form 86 out of time.

16.  The applicant’s application for leave to apply for judicial review 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