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

HCAL 1560/2022

[2026] HKCFI 3164

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1560 of 2022

Application for Leave to Apply for Judicial Review

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

Following;

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

Observations for the Applicant:

Introduction

1.  By Form 86 filed on 22 December 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 2 September 2022 (the “Board’s Decision”).

2.  The Applicant requested an oral hearing for the Leave Application.  The hearing took place on 11 May 2026 and the Applicant attended in person.  The Applicant however indicated at the hearing that he had nothing to say in respect of the Leave Application, despite having requested the oral hearing himself.

Background

3.  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.

Discussion

4.  The Board’s Decision was issued on 2 September 2022.  The Leave Application was however only made on 22 December 2022.  The Leave Application was thus not made promptly, and in any event not made within the three-month period provided under O 53 r 4(1) of the Rules of the High Court (Cap 4A). 

5.  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.

6.  In the present case, the delay was about 3 weeks.  There is no application for extension of time.  There is equally no explanation for the delay.

7.  Notwithstanding the absence of any explanation for the delay, I shall proceed to consider the merits of the intended judicial review, as this is an important consideration in deciding whether to grant the extension.

8.  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 of Immigration (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, procedural unfairness or irrationality in the decision of the Board.  (See Nupur Mst v Director of Immigration [2018] HKCA 524, at §14)

9.  The Applicant did not provide any grounds in support of the Leave Application on the Form.  In the supporting Affirmation, the Applicant simply stated that he did not agree with the Board’s Decision, and he attached a copy of the Board’s Decision and a copy of the Director’s Decision dated 24 May 2021 to the Affirmation.  The Applicant did not provide any grounds in support of the Leave Application.

10.  I have considered the Board’s Decision in detail.  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.  The Board was entitled to reject the Applicant’s claims based on the evidence and its reasoning, in particular in light of the fact that the Applicant had failed to attend the hearing before the Board so that there was no evidence or explanation to address the Board’s queries (§§71-77, 84-92 of the Board’s Decision).  I see no errors in the Board’s reasoning.  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. 

11.  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

12.  As the Leave Application was made out of time and without any valid explanation for the delay, and more importantly, the challenge to the Board’s Decision is not reasonably arguable, I would have refused to grant an extension of time even if the Applicant had made such application.  For completeness, the Leave Application would be refused in any event even if it was filed within time based on the reasons stated above.

13.  In the premises, I make an order that 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