FOYSAL AMIR v. TORTURE CLAIMS APPEAL BOARD

HCAL 1049/2021

[2026] HKCFI 3225

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1049 OF 2021

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

	consideration of the documents only; or
	consideration of the documents and the applicant being absent in open court;

1.  On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board”.

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

Observations for the applicant:

The Leave Application

1.  By way of Form 86 dated 29 June 2021 and filed on 26 July 2021, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board (“the Board”) dated 26 April 2018 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2021/HCAL001049_2021_files/the_Board's_Decision.pdf

2.  The Board dismissed the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 7 December 2017 (“the Director’s Decision”) and confirmed the same, which refused the applicant’s request to re-open his non-refoulement claim.

Amendment

3.  In Form 86, the applicant named the Board / Non-refoulement Claims Petition Office as the putative respondent, when only the Board should be the putative respondent.

4.  The Non-refoulement Claims Petition Office is just an office providing administrative and secretariat support to the adjudicators of the Board and should not be named as a putative respondent at all.

5.  Thus, on this court’s own motion, the name of the putative respondent is amended to “Torture Claims Appeal Board”.

6.  For the sake of completeness, the applicant in fact described the decision in respect of which relief is sought as “Decision made by the Torture Claims Appeal Board /Non-refoulement  Claims Petition Office dated 26 April 2018 affirming the Notice of Decision made by the Director of Immigration dated 21 December 2017.”  However, the Director’s Decision was made on 7 December 2017, not 21 December 2017.

7.  Nevertheless, as the Board’s Decision is the only subject matter of the Leave Application and the date of the Board’s Decision was stated correctly in Form 86, this court will treat the error on the date of the Director’s Decision as a typing mistake and will not take issue on it.

Late application

8.  By virtue of Order 53, rule 4(1) of the Rules of the High Court, Cap 4A, the applicant had to make the Leave Application within 3 months when the grounds for the Leave Application first arose, ie when the Board’s Decision was made.

9.  However, the applicant filed Form 86 on 26 July 2021, which was 3 years and 3 months after the Board’s Decision (made on 26 April 2018). The applicant was hence late for 3 years in making the Leave Application, and this court has to consider whether there is any good reason to extend the time for the applicant to make the Leave Application.

10.  As held in AW v Director of Immigration [2016] 2 HKC 393, the criteria for granting an extension of time are:

(i)  the length of the delay;

(ii)  the reason for the delay;

(iii)  the merits of the intended application; and

(iv)  any prejudice to the putative respondent and to public administration.

11.  The applicant did not make any application for extension of time and provided no explanation for the delay when he filed the Leave Application.

12.  A delay of 3 years is very substantial, and there is simply no reason for this court to grant an extension of time for the applicant to file the Leave Application when no explanation was given by the applicant at all. More importantly, there is no merit in the intended judicial review as discussed below.

13.  Having considered the above criteria, this court is not prepared to grant any extension of time to the applicant to file the Leave Application, even if an application for extension of time was made. The Leave Application can therefore be dismissed on the ground of being made out of time alone.

14.  However, for the sake of completeness, this court will still examine the merits of the Leave Application.

The applicant’s case

15.  The basis of the applicant’s claim for non-refoulement protection is unclear to this court, as neither the Director nor the Board had begun to consider the question of risk of harm that the applicant might face because the applicant had not returned his completed Non-refoulement Claim Form (“NCF”) as required under section 37Y(2) of the Immigration Ordinance, Cap 115 (“the Ordinance”).

16.  In any event, the Leave Application is only about the applicant’s challenge of the Board’s Decision in dismissing his appeal and confirming the Director’s Decision in refusing the applicant’s request to re-open his non-refoulement claim.

Oral hearing

17.  The applicant requested for an oral hearing of the Leave Application. However, the applicant was absent at the hearing on 28 May 2026.

18.  As held in Re Abdus Salam [2019] HKCA 1091, an application for leave to bring judicial review should not be dismissed for want of prosecution merely because the applicant failed to attend the oral hearing of the leave application. The correct approach is to treat the applicant as having withdrawn the request for a hearing by reason of the absence at the hearing, and to proceed to determine the leave application on its merits.

19.  Thus, this court will proceed to consider the merits of the Leave Application based on the written materials before this court.

Grounds for judicial review

20.  The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).

21.  In Form 86, the applicant stated under the heading “Grounds on which Relief is sought” as follows:-

“Decision(s) made in respect of my Non-refoulement Claims states all the details of my claim. I would be able to provide a copy of the same to the court upon my release from the Immigration detention. I believe that the Director of Immigration and the Adjudicator of Appeal Board reached the decision wrongly in assessing my Non-refoulement Claims. The decisions were not reasonable and fair (as required by the Wednesbury test). Indeed, the right to life is protected under Article 28 of the Basic Law and Article 2 of the Bill of Rights. In practice, the right to life is mainly protected by the criminal law and it must be protected from extra-judicial killings that I may face if I am deported back to my country.

I humbly ask this Honorable Court to grant leave to have the Decision judicially reviewed.”

22.  In the applicant’s supporting affirmation dated 29 June 2021, the applicant stated that:-

“I am the Applicant herein.

I am presently not in possession of any of my documents. I would be in position to submit rest of the documents upon my release.”

Discussion

23.  First of all, the applicant cannot challenge the Director’s Decision on judicial review, as it was superseded by the Board’s Decision and is no longer susceptible to judicial review (see Re Moshsin Ali [2018] HKCA 549). Thus, this court will only deal with the applicant’s application in respect of the Board’s Decision, which is the only subject matter of the Leave Application.

24.  As aforesaid, neither the Director nor the Board had begun to consider the question of risk of harm that the applicant might face because the applicant had not returned his completed NCF as required under section 37Y(2) of the Ordinance. Thus, the applicant’s complaint in Form 86 that the Board reached the decision wrongly in assessing his non-refoulement claim is simply misplaced (see Re Castillo Raquel Adona and Another [2022] HKCA 1053).

25.  Although the applicant alleged in his affirmation that he had documents to submit, nothing had been submitted by the applicant in respect of the Leave Application, and the applicant did not even appear at the hearing scheduled on 28 May 2026 for the Leave Application.

26.  Thus, none of the matters alleged by the applicant in his Form 86 and supporting affirmation amounts to any valid ground for the intended judicial review.

27.  The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. The court will scrutinize the Board’s decision and intervene by way of judicial review only for errors of law, procedural unfairness or irrationality (see Nupur Mst v Director of Immigration [2018] HKCA 524).

28.  Thus, this court will examine and scrutinize the Board’s Decision for any errors of law, procedural unfairness and irrationality, despite the lack of any valid ground being advanced by the applicant for the intended judicial review.

29.  The factual background since the lodging of the applicant’s non-refoulement claim to the applicant’s appeal to the Board, as well as the relevant provisions, namely section 37Y(2) and the then section 37ZG were set out in the Board’s Decision. For the purpose of this decision, it suffices to highlight the following salient points:

(1)  The applicant’s application for non-refoulement protection was treated as withdrawn on 19 May 2017 due to his failure to return the completed NCF by 18 May 2017.

(2)  By his written submission dated 9 November 2017, the applicant requested to re-open his non-refoulement claim. He stated in the said written submission as follows:-

“I want to remain in Hong Kong and see the outcome of it.”

(3)  By a letter from the Director dated 21 November 2017, the applicant was requested to provide further information and evidence in writing on or before 5 December 2017 about the detailed reasons and evidence for not being able to return the completed NCF as required due to circumstances beyond his control.

(4)  The applicant provided no further information to the Director.

30.  Under sections 37Y(2) and the then 37ZG(1) of the Ordinance, the applicant’s non-refoulement claim must be treated as withdrawn upon his failure to complete and return the NCF by the stipulated time. His claim might be re-opened if he provided sufficient evidence in writing to satisfy the Director that due to circumstances beyond his control, he had not been able to return a completed torture claim form as required under section 37Y(2).

31.  Although the applicant had written to the Director to request for the re-opening of his claim, he had not provided any evidence to satisfy the requirement of the then section 37ZG(3), ie due to circumstances beyond his control, he had not been able to return a completed torture claim form as required under section 37Y(2). What he stated in his submission, namely “I want to remain in Hong Kong and see the outcome of it”, is clearly not a justification for re-opening his non-refoulement claim.

32.  That being the case, the Director has no legal basis to allow the applicant’s non-refoulement claim to be re-opened, and the decision in refusing to re-open the applicant’s claim cannot be faulted (see Re Castillo Raquel Adona and Another, supra). Likewise, the Board’s Decision in agreeing with the Director and his grounds for making his decision cannot be flawed too.

33.  This court notes that sections 37Y(2) and the then 37ZG of the Ordinance refer to torture claims only. However, in Ram Chander v Director of Immigration [2018] HKCA 585, the Court of Appeal, in construing section 37ZO of the Ordinance, held that “Though the statutory provision is applicable to torture claims, by virtue of the administrative provisions governing USM, we are satisfied that under the current USM regime the same constraints are applicable for other non-refoulement claims.”

34.  By the same token, the same constraints in sections 37Y(2) and the then 37ZG of the Ordinance are applicable to other non-refoulement claims under the USM regime.

35.  Thus, this court finds that the Board’s Decision in dismissing the applicant’s appeal and confirming the Director’s Decision can only be correct.

36.  Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly set out the law and key legal principles relating to the applicant’s application to re-open his non-refoulement claim. This court could detect no errors of law, procedural unfairness or irrationality in the Board’s Decision. The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision.

37.  As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, for the court to grant leave to apply for judicial review, the claim has to be a reasonably arguable claim which enjoys realistic prospects of success. It is the view of this court that the applicant has failed to establish such a claim and hence leave must be refused.

Conclusion

38.  For reasons aforesaid, the Leave Application is dismissed for being made out of time and also for lack of merits.

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