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

HCAL 460/2020

[2025] HKCFI 2207

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 460 of 2020

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

Following:

	consideration of the documents only;            or
	consideration of the documents and oral submissions by the Applicant in open court;

1.  The Form 86 is amended on the court’s own motion.

2.  The Leave Application be dismissed.

Observations for the Applicant:

Introduction

1.  By prescribed Form 86 filed on 20 March 2020, the applicant applied for leave to apply for judicial review (“Leave Application”).  The intended judicial review was against the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) dated 10 March 2017 (“Board’s Decision”) dismissing the applicant's appeal against the decisions of the Director of Immigration (“Director”) dated 10 December 2015 and 3 March 2017 (“Director’s Decisions”) rejecting the applicant's non-refoulement claim on all applicable grounds except torture risk^[1] which was covered by a prior decision of the Director dated 16 September 2013.  The Board’s Decision can be viewed at the following hyperlink: -

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000460_2020_files/the_Board's_Decision.pdf

2.  In his Form 86, the applicant named the Director as well as an adjudicator of the Board as the proposed respondents and the Director and the Board as interested parties. Since the Board should have been the proper respondent and the Director the proper interested party, the Form 86 will be accordingly amended on the court’s own motion.

3.  The basis of the applicant’s claim is that he would be harmed or killed by his uncle and his sons over  a dispute regarding ownership of land that the applicant’s father purchased by using the the revenue from the family-owned restaurant.  The Board’s reasoning and findings were set out in detail in the Board’s Decision and it is not necessary for me to repeat them.  Unless otherwise specified, I shall also adopt the Board’s abbreviations and descriptions stated in the Board’s Decision.

4.  At the applicant’s request, the court scheduled a hearing to be held on 15 May 2025.  The applicant attended the hearing in person.  After having heard from him, this court informed him that the decision would be reserved, and be sent to his updated address.

Discussion

5.  The Leave Application operates as a ‘filtering’ process and there is no requirement or expectation to give elaborate reasons for my decision.[2] It is sufficient to state my observations after considering the Board’s Decision and the applicant’s materials adduced.

6.  In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly[3], and further to make full and frank disclosure of all material facts to be verified by an affidavit.   

7.  In his Form 86, the applicant provided a number of grounds for the judicial review, which can be summarized as follows.

(a)  The Board’s Decision was unreasonable and unfair;

(b)  Insufficient importance or weight was given to state acquiescence;

(c)  The applicant was tortured at the behest of and in full collusion of the police and law enforcement agencies;

(d)  The state failed to provide reasonable protection;

(e)  Though the Director listed relevant country of origin information (“COI”) that supported the applicant’s belief that the police in his country would not be able to protect him, such COI was not considered or given enough weight;

(f)  Corruption and incompetence of the administration in his country is still a very serious problem;

(g)  The Director showed an unfair attitude, and failed to meet the required high standards of fairness.

8.  In his affirmation in support of his Form 86, the applicant also stated that the Director failed to consider all matters raised in the claim.

9.  However, the applicant did not provide any particulars in support of his grounds.

10.  Since the Leave Application was filed out of time, this court therefore asked him to provide reason for the delay and whether he has any further grounds he wishes to submit in support of the Leave Application.  As the reason for the delay, the applicant stated that when he received the Board’s Decision, nobody told him that he was required to review it. It was only in about 2020 , an officer from the Immigration Department telephoned him to ask him to review the Board’s Decision if he wanted to continue to remain in Hong Kong. He also told me that in 2012, he married to a Hong Kong resident and had already made an application for a dependency visa.  His application is still pending. 

11.  As the Courts have repeatedly stated, a finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality.[4] In the present case, the Board rejected the claim primarily because the applicant had not suffered severe pain and physical or mental suffering that reached the minimum level of severity.  The Board found that there was no real risk of harm.  The Board also found that reasonable state protection would be available and that internal relocation would be viable.  These are findings of fact, which the court in a judicial review will not interfere with, subject to there being any public law errors.

12.  Bearing in mind the enhanced standard that should be adopted in scrutinizing the Board’s Decision, this court is satisfied that the Board correctly applied the law relating to all the grounds and observed a high standard of fairness in the Decisions of the Director and the Board.  As for the grounds he provided in the Form 86, they are either vague or largely do not relate to the Board’s Decision. Neither has the applicant advanced any valid grounds at the hearing. The applicant has not shown any errors of law or procedural unfairness or irrationality in the Board’s Decision.  The applicant’s intended challenge to the Board’s Decision is not reasonably arguable with realistic prospects of success such that would enable this court to grant leave[5].

13.  More importantly, there is a significant and inordinate delay in this Leave Application. Pursuant to O 53 r 4(1) of the Rules of the High Court, an application to apply for judicial review shall be made promptly and in any event within 3 months from the date when grounds for the application first arose. Hence, the deadline for the filing of the Leave Applicant was 9 June 2017, and this application is late for almost 3 years.

14.  Before considering whether I should exercise my discretion for an extension of time, I should have regard to, among others,  (i) the length of the delay; (ii) the reason for the delay; and (iii) the prospect of success of the intended challenge.  The present delay is substantial. Very good reason is therefore required to explain for the delay. Not only do I reject the applicant’s alleged ignorance as a valid reason for the delay, I find the applicant’s motive for the making of the Leave Application was made in bad faith. He only used it as a vehicle to prolong his stay in Hong Kong.  Having taking into consideration of the little prospect of success of the intended challenge, I am disinclined to allow the extension of time.

Orders

15.  The Form 86 is amended on the court’s own motion.

16.  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