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

HCAL 533/2020

[2025] HKCFI 2302

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 533 of 2020

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following;

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

1.  Form 86 be amended as follows:- the Director of Immigration be named as the Putative Interested Party.

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

Observations for the Applicant:

Introduction

1.  By Form 86 filed on 7 April 2020 (the “Form”), the Applicant applied for leave to apply for judicial review (the “Leave Application”). In the Form, the Applicant named the Torture Claims Appeal Board/ Non-refoulement Claims Petition Office (the “Board”) as the proposed respondent.  The Applicant however did not identify the decision in respect of which relief is sought.  The court notes that there was only one decision issued by the Board on 18 December 2015 (the “Board’s Decision”).  As such, the court has to assume that the Applicant is seeking leave to apply for judicial review against the Board’s Decision.

2.  In the Form, the Applicant has named himself as the proposed interested party.  This is misconceived, as it is trite that the Director of Immigration (the “Director”) should be the proposed interested party in an application of this sort.  Accordingly, I make an order to amend the Form on the court’s own motion.

3.  The Applicant requested an oral hearing for the application.  The hearing took place on 12 May 2025.  Notice of the hearing was issued to the Applicant in advance.  Attempt was also made to remind the Applicant of the hearing by phone on 9 May 2025 but in vain.  The Applicant did not attend the hearing.

Background

4.  The Applicant’s background, the basis of his claim and the arguments he advanced had been set out in details 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.

Discussion

5.  The Board’s Decision was issued on 18 December 2015.  The Form was however only filed on 7 April 2020.  The Leave Application was accordingly filed significantly out of time for more than 4 years.

6.  No application for extension of time to file the Leave Application was made by the Applicant.  There was no explanation for the delay in either the Form or the supporting Affirmation. 

7.  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.

8.  In the present case, there was a substantial delay of more than 4 years. There is no explanation, let alone valid explanation, for the substantial delay.   

9.  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.

10.  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 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)

11.  In the Form, the Applicant did not provide any grounds in support of the Leave Application.  In the supporting Affirmation, the Applicant seemed to suggest that someone would advise him on the appeal grounds after he sought advice from the local department.  It is not clear what the Applicant meant by that.  In any event, the fact remains that no grounds have been put forward in support of the Leave Application. 

12.  I have considered the Board’s Decision in details.  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. The Board’s Decision was comprehensive with adequate reasons provided.  In particular, the Board was entitled to make the findings it did in §§42-52 of the Board’s Decision in the light of the evidence.  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.

13.  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.

Conclusion

14.  As the Form was filed significantly out of time and without any valid explanation for the delay, and the challenge to the Board’s Decision is not reasonably arguable, I refuse to grant an extension of time even if the Applicant makes such application.  In the premises, I make an order that the Form be amended as described above and the Leave Application 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

[1] https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000533_2020_files/the_Board's_Decision.pdf