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HCAL 1119/2020
[2025] HKCFI 3445
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1119 of 2020
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BETWEEN
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Muhammad Arif Khan |
Applicant |
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and |
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
Putative
Respondent |
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and |
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Director of Immigration |
Putative |
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Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following:
Order by Deputy High Court Judge (Non-refoulement Claims) Val Chow:
1. Form 86 be amended on the court’s own motion as follows:-
a. The name of the Putative Respondent be amended as Torture Claims Appeal Board / Non-refoulement Claims Petition Office; and
b. the Director of Immigration be named as the only 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 8 June 2020 (the “Form 86”), 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 3 January 2020 (the “Board’s Decision”).
2. In the Form 86, the Applicant purported to name the Board as the proposed respondent and himself as the proposed interested party. As it is trite that the Board should be the proposed respondent whereas the Director of Immigration (the “Director”) should be the proposed interested party and to ensure that the parties are properly named, I make an order to amend the Form 86 accordingly on the court’s own motion.
3. An oral hearing was requested by the Applicant. It took place before me on 17 July 2025 (the “Hearing”) but the Applicant was absent. Nevertheless, I shall proceed to consider the Leave Application on paper.
Background
4. The Applicant’s background, the basis and history 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. In short, the Applicant claims that there is a risk that he would be seriously harmed or killed by individuals affiliated to the Pakistan Muslim League (Q) (“PML-Q”) by reason of his membership and support in the Pakistan Muslim League (N) (“PML-N”) which is a rival political party to the PML-Q.
This Leave Application is out of time
5. The present application is out of time as it was filed about more than two months after the expiry of the 3-month time limit as provided under O.53 r.4(1) of the Rules of the High Court. The Applicant made no request for extension of time and gave no explanation for the delay in the Form 86 despite being expressly requested to do so. On this point alone, the Leave Application should be dismissed.
6. In any event, even if an application for time extension is made, I am not minded to grant any time extension for the reasons set out below.
7. As explained by the Court of Appeal in AW and Director of Immigration and William Lam CACV 63/2015 (unreported, 3 November 2015), the following factors are relevant in determining whether to grant leave to file an application for leave to apply for judicial review out of time: (1) length of the delay; (2) explanation for the delay; (3) merits of the substantive application; (4) prejudice to the applicant if leave is refused vis-à-vis that to the respondent and public administration if leave is granted; and (5) whether the application raises any questions of general public importance.
8. In my view, the delay of one month is not trivial and the Applicant has failed to attend the Hearing to provide an explanation for the delay.
Merits
9. It is trite that determination of the merits of a non-refoulement claim is essentially within the remit of the Director and the Board, who are the primary decision-makers in the evaluation of the evidence based on the materials available to them. A court will not usurp their primary decision-making role in a judicial review, which is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh in the absence of any legal error. 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: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.
10. Further, an applicant, even if unrepresented, is required to properly identify the grounds of judicial review in the Form 86, and to fully and frankly disclose all material facts and potential legal answers, see: Ho Loy & Another v Director of Environmental Protection (HCAL 21/2015, 22 December 2016) per Chow J. (as he was then) at §142. The Applicant has failed to do so. In the Form 86, the Applicant did not provide any grounds in support of the Leave Application. In the supporting affirmation, the Applicant merely expressed his dissatisfaction with the decision of the Director and the Board Decision and claimed that his life is still in danger in his home country.
11. The Board’s Decision was comprehensive with adequate reasons provided. In particular, the Board was plainly correct in finding that there is no evidence of any real risk of serious harm, given that, based on unchallenged Country of Origin information, the PML-Q has ceased to be an active political force in Pakistan (§§17-19, 25 of the Board’s Decision).
12. In any event, I agree with the Board’s finding that the Applicant can be relocated to other parts of Pakistan which is, after all, a large country and there is no evidence that the Applicant’s alleged attackers would have any influence outside their local area. (§§20-22 of the Board’s Decision).
13. Hence, I am of the view that the Board’s Decision satisfies the enhanced Wednesbury test and is not Wednesbury unreasonable or irrational. I also cannot see any errors of law or procedural impropriety from the Board’s Decision.
14. In short, the Applicant’s intended challenge of the Board’s Decision is not reasonably arguable with any realistic prospects of success.
Lack of bona fide intention to continue with the Leave Application
15. As an additional factor in the exercise of my discretion on whether to grant a time extension, it cannot escape this court’s attention that the Applicant has failed to (i) attend the hearing before the Board on 26 September 2019; (ii) observe the procedural time limit for filing the Form 86; and (iii) attend the Hearing before this court. On each occasion, no explanation was provided by the Applicant for his default.
16. Given the pattern of persistent failures and non-observance on the part of the Applicant, I have genuine doubt as to whether the Applicant has any genuine intention to pursue the Leave Application.
Conclusion
17. In the premises, I make an order that the Form 86 be amended as described above and the Leave Application be dismissed as it was made out of time.
Dated the 8th day of August 2025
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(Edison Ho)
for Registrar, High Court
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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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted
(Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave
(Order 53, rule 6(5)).
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Sent to the Applicant
on 8/8/2025
Muhammad Arif Khan
Applicant’s ref. no:
Nil |
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 8/8/2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 13070/18/8/340/P2550
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 2357/18
(formerly RBCZ/2000015/14)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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