ARSHAD MUHAMMAD v. NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1525/2020

[2025] HKCFI 4798

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1525 of 2020

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

Following:

1.   The Form 86 be amended on the Court’s own motion to name only the Non-Refoulement Claims Petition Office as the Putative Respondent, to name only the Director of Immigration as the Putative Interested Party, and to substitute “decision by Non-Refoulement Claims Petition Office” in place of “decision by Appeal Board”.

2.   Application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

Introduction

1.  The Applicant is a national of Pakistan.  By a Form 86 filed on 22 July 2020 (“Form 86”), and a supporting affirmation also dated and filed on 22 July 2020 (“the Affirmation”), he sought leave to apply for judicial review of a decision said to be one of the Torture Claims Appeal Board (“TCAB”), but which was actually one of Non‑Refoulement Claims Petition Office (“NRCPO”), dated 15 August 2019 (“NRCPO Decision”)[1].

2.  The Applicant sought an oral hearing of his application. He appeared at the scheduled hearing on 13 August 2025 and made some submissions, which I outline and deal with below.

3.  I have amended the Form 86 to properly identify the putative respondent, the putative interested party, and the nature of the decision. I will use the abbreviations and definitions from the NRCPO Decision unless otherwise specified herein.

Background

4.  This is set out in the NRCPO Decision, the Director’s 1^st Decision, and the Director’s Further Decision (the latter two of which are defined below). I will not repeat the contents thereof, but in summary:

a.  The Applicant claimed non-refoulement relief on the basis that if he were sent back to Pakistan, he would be harmed or killed by Arshad Malik from the Pakistan People’s Party and the Pakistani police in his area;

b.  The claim was assessed on the grounds of Torture Risk[2], BOR 3 Risk[3], and Persecution Risk[4] and was rejected by the Director of Immigration (“Director”) in a decision dated 23 January 2015 (“Director’s 1^st Decision”);

c.  No further steps were or have been taken by the Applicant in relation to the Director’s 1^st Decision. Instead, the Applicant on 3 November 2015 requested that his claims be considered in relation to BOR 2 Risk[5];

d.  Accordingly, the Director by a letter dated 7 December 2016 invited the Applicant to submit additional facts relating to his non-refoulement claim on all applicable grounds, including in relation to BOR 2 Risk[6]. The Applicant failed to do so by the deadline of 21 December 2016. The Director then, by a decision dated 23 December 2016 (“Director’s Further Decision”), rejected the Applicant’s claim for non-refoulement protection under BOR 2 Risk; and

e.  The Applicant petitioned to the NRCPO. The NRCPO issued the NRCPO Decision on 15 August 2019, in which it found that BOR 2 Risk had not been established and confirmed the Director’s Further Decision.

Legal Principles

5.  An applicant, even one acting in person, is required to identify the grounds of judicial review clearly and succinctly in the Form 86, and to fully and frankly disclose all material facts and potential legal answers (Ho Loy & Another v Director of Environmental Protection, unrep.  HCAL 21/2015, 22 December 2016, Chow J. (as he was then) at §142; Leung Kwok Hung, unrep., HCAL 83/2012, 28 September 2013, Lam J. (as he was then) at §35; Begum Khadija [2018] HKCA 571; Khan Kamran [2020] HKCA 380).

6.  It is trite that the role of the Court in a judicial review is not to provide a further avenue of appeal, and that the Court should not usurp the role of the TCAB/NRCPO which is (and together with the Director are) the primary decision‑makers.  The assessment of evidence, COI materials, and credibility, risk of harm, state protection and viability of internal relocation are primarily within the province of the TCAB/NRCPO and the Director, which are entitled to make evaluations based on the evidence available and to decide the weight to be given to them.  While 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 will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the TCAB/NRCPO.  (Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; Nupur Mst v Director of Immigration [2018] HKCA 524; Re Kartini [2019] HKCA 1022; Re Rupinder Singh [2021] HKCA 886).

7.  In order for me to give leave for judicial review, I have to be satisfied that there is an intended ground of review which is reasonably arguable, which is one that enjoys a realistic prospect of success (Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676).  As a leave application of this sort is meant to be a filtering process, I am not expected to give elaborate reasons for my decision (see Re Zunariyah [2018] HKCA 14, at §23).

8.  Given RHC O. 53 r. 4(1) and s. 21K(6) High Court Ordinance (CAP. 4A), where an Applicant applies for leave to apply for judicial review more than 3 months after the decision:

a.  The failure to apply within 3 months constitutes “undue delay”. To justify an extension of time in which to apply for leave, the Applicant must show “good reason” to extend time. In deciding this, certain factors that are likely to be significant are (i) the length of the delay (ii) the explanation for the delay[7] (iii) the merits of the substantive application[8] (iv) prejudice, and (v) whether the application raises questions of general public importance;

b.  Where the court considers that there is no good reason for extending the period, it will refuse leave to apply for judicial review. The refusal of an extension of time is part and parcel of a refusal to grant leave to apply. It is not the case that the court refuses the extension of time as a discrete decision and then makes no decision on the question of leave to apply for judicial review, treating this as a separate matter entirely;

c.  If the court is satisfied that there is good reason for extending the period, it does not follow that leave to apply for judicial review will automatically be given. While the court might grant leave, it retains a discretion to refuse to do so and the existence of a good reason for undue delay is only one facet of the question, others including sufficiency of interest and the need to satisfy the arguability test. Leave may also be refused on the basis that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration; and

d.  Even if leave to apply is granted, the issue of undue delay on the part of the applicant may be raised again at the substantive hearing of the judicial review application. That is a separate consideration of whether relief should be refused on the basis that the court thinks that relief would be likely to cause substantial hardship or prejudice to the rights of another or be detrimental to good administration.

See AW v Director of Immigration & anor. [2016] 2 HKC 393 (CA) (at §§23 to 36), Thomas Lai [2014] 6 HKC 1 (at §§43 to 45 as also cited in AW, supra), and H v Director of Immigration (2020) 23 HKCFAR 248 at §§17-22, 36-44 citing inter alia both AW and Thomas Lai. See also Re Hariatiningsih [2021] HKCFI 1194 at §§12-13, 16-19 citing the aforesaid, upheld in [2022] HKCA 1321.

Discussion

9.  The application was filed more than 3 months after the NRCPO Decision, and over 8 months out of time. I do not see any good reason to extend time for the Applicant’s application for leave to apply for judicial review. I therefore refuse to grant such an extension of time, and I dismiss the application for leave to apply for judicial review. This is for the following reasons.

10.  Dealing, firstly, with the merits of his application, the Applicant has not identified or set out any grounds of judicial review. There is hence no allegation of any procedural unfairness in relation to, and/or of any error of law in, and/or any irrationality/failure to meet the enhanced Wednesbury test in, the NRCPO Decision.

11.  Nevertheless, given the seriousness of the issues at hand, I have in relation to the question of merits of the substantive application considered the NRCPO Decision with rigorous examination and anxious scrutiny, applying the enhanced Wednesbury standard and bearing in mind the need for a high standard of fairness.

12.  The NRCPO set out the Applicant’s procedural history, including the making of the Director’s 1^st Decision, the Director’s Further Decision and circumstances. Having had regard to the high standard of fairness and the Applicant’s letter of 3 November 2015 it took the view that as no significant issues of credibility arose, there was no procedural unfairness to determine the matter without an oral hearing (Paragraphs 1 to 7).

13.  BOR 2 Risk and relevant elements were then outlined (Paragraphs 8 to 10), as were the Applicant’s claims (Paragraphs 11 to 22). It also considered in detail the Director’s 1^st Decision, that such had not been appealed, that no further evidence had been provided to substantiate the Applicant’s claim for BOR 2 Risk, and that given the absence of further information from the Applicant the Director had reached the Director’s Further Decision (Paragraphs 23 to 25). The NRCPO then considered the evidence, COI, and that in the Notice of Petition the Applicant had provided no further evidence to support his claim. It concluded that the risk to the Applicant’s life if he now returned to Pakistan would be very low. It was also satisfied that in any event internal relocation was available within Pakistan for reasons given by the Director. Accordingly, BOR 2 Risk had not been established, and the Director’s Further Decision was confirmed (Paragraphs 26 to 32).

14.  I do not, from my examination and scrutiny, see that the Applicant has any reasonably arguable case that there was procedural unfairness (bearing in mind the need for a high standard of fairness), an error of law, and/or irrationality/failure to meet the enhanced Wednesbury test that is sufficient to vitiate the TCAB Decision. Indeed, the Applicant’s case on BOR 2 Risk would have been doomed to fail given the rejection and final determination of BOR 3 Risk in the Director’s Decision (s. 37V(2) Immigration Ordinance (CAP. 115)), and the lack of any further assertions or evidence from the defendant to indicate a change in position (see RM v Muttrie (HCAL 166/2015, 3 March 2016) M. Ng. DHCJ. (as she was then) at §52, Kulwinder Kaur [2022] HKCA 49 at §§54 59, Sandhu Vinny [2022] HKCFI 2327 at §§24-26, [2023] HKCA 1261 at §§30, 32-33)

15.  In the Affirmation the Applicant claimed that “I can’t go back to my country at this moment because my life is not save(sic) in my own country. Please help me to stay here until my problems will be solved.” I do not see how these bare and unsubstantiated allegations are relevant to or assist the application in any way, given the findings in and my analysis of the NRCPO Decision, and the nature and purpose of judicial review proceedings.

16.  There is hence no basis for the court to intervene by way of judicial review, and I am not satisfied that there are any reasonably arguable grounds for judicial review which enjoy a realistic prospect of success.

17.  Secondly, there is undue delay in this case as the leave application was filed over 8 months out of time. Despite this, there was no request for an extension of time to make the application in the Form 86, and no explanation was given in the Affirmation for the undue delay notwithstanding the Applicant’s duty of full and frank disclosure as mentioned above.

18.  At the hearing before me the Applicant claimed that he did not receive the letter, sent by post, dated 15 August 2019 from the TCAB/NRCPO to which was attached the NRCPO Decision (“the Refusal Letter”). He said it “was not sent to me”. However, he admitted that he had since 2014 lived, and was at the time living, at the address to which the Refusal Letter been sent (“the Address”), which was the address he had provided in his Notice of Petition. He claimed that he only learnt about the NRCPO Decision from staff of the Director on the same day he went to apply for judicial review, and that he was illiterate. However, he also admitted he was able to read the court letter notifying him of the hearing, which was why he had appeared before me. He then asserted that he had some medical records of his “problems” and that he had “many issues and doctors and problems”, but that the records had been thrown out by his roommate, so he had no records or documents with him or that he wanted to show me.

19.  I do not accept that I have been given a credibly valid or acceptable reason for this substantial delay in applying for leave. There is no indication that the Refusal Letter had been returned undelivered. I also see no credible evidence, or basis on which I can infer (rather than impermissibly speculate), that the Refusal Letter had not been delivered to the Address, let alone that the Applicant was somehow unaware of the NRCPO Decision until 22 July 2020. I consider that the NRCPO Decision was hence served on and given to the Applicant 2 working days after 15 August 2019 (see s. 37ZV(1) and  Immigration Ordinance (CAP. 115)). Nor do I see that the Applicant’s bare and unsupported claims as to medical problems are relevant to or ground any such basis or explanation for the delay.

20.  Thirdly, I do not see any question of general public importance raised by the application which is likely to be resolved by the courts in any event.  Given the lack of any reasonably arguable grounds, I also see no prejudice to the Applicant if the application were not allowed to proceed, whereas allowing it to proceed would clearly be to the detriment of public administration and would needlessly prejudice the putative Respondent. Indeed, even if there were an acceptable explanation for the delay, given the other matters herein I would still refuse to grant leave.

Conclusion

21.  In the circumstances, I have ordered that the application for leave to apply for judicial review be dismissed and made the other orders above.

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