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

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following;

1.  The Applicant’s Form 86 be amended to name the Torture Claims Appeal Board / Non-refoulement Claims Petition Office as the putative respondent and the Director of Immigration as the putative interested party.

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

Observations for the Applicant:

Introduction

1.  By a Form 86 filed on 16 May 2022 (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 19 January 2022 (the “Board’s Decision”).

2.  In the Affirmation in support of the Leave Application, the Applicant stated that “I am the Applicant [Im] requested to Court you please closed my Judicial RBCL 409/14 (C-2)” and exhibited a copy of the Board’s Decision as an exhibit to the Affirmation.  At the oral hearing of the Leave Application on 20 January 2026 (the “Hearing”), the Applicant clarified that notwithstanding the above statement in the Affirmation, he wishes to proceed with his Leave Application.

3.  I amend the Form on my own volition to name the Board as the only putative Respondent and the Director as the only putative interested party.

Background

4.  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.

Leave Application out of time

5.  The Board’s Decision was issued on 19 January 2022.  However, the Form was only filed on 16 May 2022, around 4 months later and beyond the time prescribed for filing an application for leave for judicial review of the Board’s Decision, which is 3 months from the date of the Board’s Decision: see Order 53 Rule 4 RHC (Cap 4A).

6.  No application has been made by the Applicant for extension of time for him to bring the Leave Application.  No explanation has been provided by the Applicant for the delay, whether in the Form or the Affirmation.

7.  In considering whether time should be extended for an application for leave for judicial review, the Court will consider, amongst other things, the following:

a.   The length of the delay;

b.   The explanation of the delay;

c.   The merits of the substantive application;

d.   The prejudice to the applicant if time is not extended, and the prejudice to the respondent and to public administration if a challenge is allowed to proceed out of time; and

e.   The question of general public importance.

See: AW Director of Immigration and William Lam CACV 63/2015, 3 November 2015 at para. 27

8.  As I have pointed out above, there was no application for extension of time and no explanation for the delay.  Further, the Leave Application has no merits, for reasons which I will explain below.  Hence, even if there had been any application by the Applicant for extension of time to apply for leave for the judicial review, I would have rejected the same.

Leave Application unmeritorious

9.  The Applicant has not identified any grounds in support of the Leave Application, whether in the Form or the Affirmation.  At the Hearing, the Applicant said that while he cannot provide any evidence, his situation in Pakistan remains very dangerous as the amount of money which he owes has doubled.  Further, he and his brothers belong to a political party known as PPI, his brothers have gone missing and he fears that he will go missing too if he returns to Pakistan.

10.  The relevant legal principles are well established.  The Court’s role 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 scrutinising 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 para. 14.  There must be a reasonably arguable case with a realistic prospect of success before leave for judicial review will be granted: see Peter Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

11.  Having considered all the relevant materials before me, I do not consider the Applicant’s intended challenge against the Board’s Decision to be reasonably arguable with any realistic prospect of success.

12.  I have reviewed the Board’s Decision in detail.  The Board had fully considered the Applicant’s evidence and his grounds for challenging the Director’s decision in refusing his claim for non-refoulment protection: see the Board’s Decision paras. 44-68.  I do not consider there to be any error of law, procedural unfairness or irrationality in the Board’s Decision.  As to what the Applicant told me at the Hearing, they are bare assertions with no evidential support.  They cannot assist the Applicant in the Leave Application.

13.  Leave application of this sort is meant to be a filtering process and this Court is not expected to give elaborated reasons for its decision: see Re Zunariyah [2018] HKCA 14 at para. 23.  I have considered all the relevant materials in reaching the present decision.

Conclusion

14.  For the reasons stated above, I will dismiss the Leave Application.

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