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HCAL 2436/2020
[2025] HKCFI 5381
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2436 of 2020
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BETWEEN
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Butt Muhammad Ateeq |
Applicant |
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and |
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
Putative
Respondent |
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and |
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Director of Immigration |
Putative |
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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) Philips Wong:
The application for leave to apply for judicial review be dismissed.
Observations for the Applicant:
Introduction
1. By Form 86 filed on 14 December 2020 (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 23 June 2020 (the “Board’s Decision”).
2. The Applicant requested an oral hearing for the application. . The hearing was originally scheduled to take place on 8 September 2025. Notice of Hearing was issued to the Applicant on 21 August 2025 at the address provided by the Applicant on the Form. No returned mail has been received by the Court. Subsequent to the hearing held on 9 September 2025 (see below), the Immigration Department informed the Court that the Applicant has provided it with another address. However, the Applicant has never updated his address to the Court.
3. 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).
4. Apart from the Notice of Hearing, on 4 and 5 September 2025, attempts were made to contact and remind the Applicant of the hearing by phone at the numbers provided by the Applicant on the Administrative Form and on Form No. 8 but in vain (the former number is not registered and the Applicant could not be reached at the latter number).
5. Eventually due to the Tropical Cyclone Warning Signal hoisted on 8 September 2025, the hearing was adjourned to the next day, i.e. 9 September 2025. Attempt was again made to contact and remind the Applicant of the hearing on 9 September 2025 by the same phone numbers on 8 September 2025 but in vain.
6. The Applicant did not attend the hearing on 9 September 2025. As the Notice of Hearing was properly served 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
7. 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[1] is included below for reference.
Discussion
8. The Board’s Decision was issued on 23 June 2020. The Form was however only filed on 14 December 2020. The Leave Application was accordingly filed out of time for more than 2 months.
9. No application for extension of time to file the Leave Application was made by the Applicant.
10. 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.
11. In the present case, there was a delay of more than 2 months. On the Form, the Applicant claimed that he only received the Board’s Decision on 23 November 2020. However, such explanation was not given on oath. There is also no information as to whether the alleged late receipt of the decision was due to the Applicant’s own fault. I do not accept the Applicant’s bare assertion stated on the Form.
12. As the merits of the intended judicial review is a significant factor to be considered in determining whether the Court should extend the time to apply for leave for judicial review, I shall proceed to consider the merits of the Leave Application.
13. 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 of Immigration (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 or procedural unfairness or irrationality in the decision of the Board. (See Nupur Mst v Director of Immigration [2018] HKCA 524, at §14)
14. In the Form, the Applicant did not provide any grounds in support of the Leave Application. In the supporting Affirmation, the Applicant stated that the police in Pakistan planned to kill him. He also accused the Board of not giving him the right to speak. He said the Board had erred in regarding being shot as a minor risk. The Applicant had further adduced some medical certificates and police report in support.
15. 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. What the Applicant stated in the supporting Affirmation had already been considered by the Board (for instance see §§4, 68-70, 78 of the Board’s Decision). It should be noted that having considered all the evidence, the Board found the Applicant not to be a reliable witness, and concluded that his claims are not credible (§130 of the Board’s Decision). I have considered the evidence and the Board’s reasoning. I am of the view that the Board was entitled to come to that finding and conclusion. I see no error in the reasoning of the Board. The Applicant’s complaints should be considered in the light of such findings.
16. In so far as the Applicant complained that the Board did not give him the right to speak, such complaint is entirely unmeritorious. There was a hearing held on 25 November 2019 and the Applicant attended the hearing. At the hearing, the Applicant was given the opportunity to provide oral evidence and make submissions (see for instance §71 of the Board’s Decision).
17. 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.
18. 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 and the grounds put forward by the Applicant.
Conclusion
19. As the Form was filed out of time with no valid explanation, and most importantly, 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. In the premises, I make an order that the Leave Application be dismissed.
Dated the 13th day of November 2025.
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(Allen LEE)
for Registrar, High Court
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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 13/11/2025
Butt Muhammad Ateeq
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 13/11/2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 9391/17/12/58/P1843
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 1017/13 (formerly
RBCZ/53/10)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
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