HALIM MD ABDUL v. TORTURE CLAIMS APPEAL BOARD

HCAL 2099/2020

[2026] HKCFI 4097

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2099 OF 2020

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 oral submissions by the applicant in open court;

1.  On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board”, and the decision in respect of which relief is sought be amended to “Torture Claims Appeal Board’s decision dated 27 November 2019”.

2.  The applicant’s application for extension of time to file the application for leave to apply for judicial review be refused.

3.  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 and filed on 21 October 2020, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of a decision which was described as follows:-

“The decision made on unknown date but notice on of 20 April 2016.

the decision dated. 27 November 2019

Adjudicator, Torture Claims Appeal Board.”

2.  The Torture Claims Appeal Board (“the Board”) made a decision dated 27 November 2019 (“the Board’s Decision”) regarding the applicant’s appeal under section 37ZR(a) of the Immigration Ordinance, Cap. 115 (“the Ordinance”) against the decision made by the Director of Immigration (“the Director”) dated 11 April 2016 (“the Director’s Decision”), which refused to re-open the applicant’s non-refoulement claim.

3.  Thus, it is clear that the date of decision which the applicant put in Form 86 was the date of the Board’s Decision. Moreover, the applicant confirmed at the oral hearing before this court that the Board’s Decision should be the only subject matter of the Leave Application. The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL002099_2020_files/the_Board's_Decision.pdf

4.  The Board found that the applicant had put forward nothing in the form of evidence to suggest that there had been a change of circumstances since the withdrawal of his non-refoulement claim that could not reasonably had been foreseen by him when he made it, and when taken together with the material previously submitted, could increase the prospect of success of the claim. The Board was satisfied that the risk of harm alleged by the applicant and expanded upon in his Notice of Appeal/Petition was the same as that asserted by him in his non-refoulement claim. In addition, the Board was satisfied that there were no special circumstances by which it would be unjust not to re-open his claim.

5.  Thus, the Board concluded that the applicant’s appeal was devoid of merit, and confirmed the Director’s Decision accordingly.

Amendments

6.  In Form 86, the applicant named “Torture Claims Appeal Board, Non- Refoulment Claims Petition Office” as the putative respondent, when only the Board should be so named.

7.  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.

8.  As aforesaid, the decision in respect of which relief is sought in the Leave Application should be the Board’s Decision.

9.  This court therefore makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board” and the decision in respect of which relief is sought to “Torture Claims Appeal Board’s decision dated 27 November 2019”.

Late application

10.  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.

11.  However, the applicant filed Form 86 on 21 October 2020, which was more than 10 months after the Board’s Decision (made on 27 November 2019). The applicant was hence late for more than 7 months 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.

12.  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.

13.  In Form 86, the applicant sought an extension of time to apply for leave to apply for judicial review. He explained that he could not receive the Board’s Decision in time, and he received the Board’s Decision by hand in the Board’s office on 20 October 2020.

14.  At the oral hearing before this court on 2 July 2026, the applicant gave this court a different story. He said that he might be imprisoned at the material time and hence he could not file the Leave Application in time. However, he could not tell this court when he was imprisoned. When this court told him that he could still make the Leave Application through the Correctional Services Department even if he was imprisoned, he then changed to say that he did not receive the Board’s Decision, and he was only informed of the availability of the Board’s Decision when he went to the Immigration Department after the Covid-19 pandemic. However, he still could not provide the date on which he obtained the Board’s Decision.

15.  A delay of more than 7 months is substantial, and the explanations given by the applicant are clearly not satisfactory. The applicant gave inconsistent accounts of why the Leave Application was filed out of time. He also failed to explain why he could not receive the Board’s Decision in time as alleged in Form 86. More importantly, there is no merit in the Leave Application at all.

16.  Having considered the above criteria, this court is not prepared to grant any extension of time to the applicant to file the Leave Application. The applicant’s application for extension of time to file the Leave Application is refused. The Leave Application can therefore be dismissed on the ground of being made out of time alone.

17.  However, for the sake of completeness, this court will still deal with the Leave Application as discussed below.

The applicant’s case

18.  It is not necessary for this court to repeat the details of the applicant’s case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above.

19.  In sum, the applicant claimed for non-refoulement protection because if refouled to Bangladesh, he feared that he would be harmed or even killed due to political reasons.

20.  In any event, the Leave Application is only about the Board’s Decision which confirmed the Director’s Decision in refusing to re-open his non-refoulement claim after the claim had been withdrawn.

Oral hearing

21.  The applicant requested for an oral hearing of the Leave Application, and his case was heard on 2 July 2026.

22.  When this court asked the applicant for the grounds of his intended judicial review, he merely replied that he had stayed in Hong Kong for a few years, he wanted to stay in Hong Kong for some more time, he has a 2 years old daughter here and he asked that he be allowed to stay in Hong Kong for a few more years until his daughter has grown up.

Grounds for judicial review

23.  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).

24.  The applicant did not identify any ground for the intended judicial review in Form 86, nor in his supporting affirmation dated 21 October 2020.

25.  As aforesaid, at the oral hearing, the applicant only said that he wanted to remain in Hong Kong, he has a 2 years old daughter here and he asked that he be allowed to stay in Hong Kong until his daughter has grown up.

Discussion

26.  First of all, the applicant’s wish to remain in Hong Kong until his daughter has grown up is not a ground for judicial review at all.

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. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. 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, despite that the applicant did not advance any valid ground for the intended judicial review, this court will still scrutinize the Board’s Decision for any errors of law, procedural unfairness or irrationality.

29.  In assessing the applicant’s appeal, the Board held an oral hearing on 12 June 2017. The applicant was present at the hearing. Thus, the applicant did have a chance to present his case to the Board in person.

30.  As can be seen from the Board’s Decision, the Board had laid out the detailed procedural history of the applicant’s claims for non-refoulement protection, including his torture claim, his subsequent claim, his repatriations, the lodging of his non-refoulement claim, his subsequent withdrawal of the same and the Director’s Decision in refusing to re-open his non-refoulement claim.

31.  The Board had also stated the statutory provisions governing the re-opening of a torture claim that had been withdrawn, ie section 37ZE of the Ordinance.

32.  The Board provided its assessment of the applicant’s application in paragraphs 17 to 24 of the Board’s Decision, and it is not necessary to repeat the same here.

33.  In gist, the Board had had regard to the statutory provisions governing the re-opening of the applicant’s non-refoulement claim that had been withdrawn, the applicant’s written evidence and his oral testimony at the Board’s hearing. After due consideration, the Board was of the view that the applicant had not provided sufficient evidence to satisfy the statutory requirements that since the withdrawal, there had been a change of circumstances that could not reasonably be foreseen when he made the withdrawal notification and, when taken together with the material previously submitted for the claim, could increase the prospects of success of the claim. Further, the Board was satisfied that there were no special circumstances by which it would be unjust not to re-open his claim.

34.  Thus, the Board found that the applicant’s application was devoid of merit. Accordingly, the Board confirmed the Director’s Decision.

35.  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 re-opening of a torture claim/non-refoulement claim that had been withdrawn. The Board also correctly identified the issues and observed a very high standard of fairness. 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.

36.  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

37.  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