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

HCAL 909/2022

[2026] HKCFI 2971

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 909 of 2022

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.

2.   There shall be no extension of time for the applicant to file the application for leave to apply for judicial review out of time.

3.   The applicant’s application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

Introduction

1.  By a “Notice of application for leave to apply for judicial review” in the prescribed Form 86 filed on 9 September 2022, 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 27 September 2021 (“Board’s Decision”) dismissing the applicant's appeal against a decision of the Director of Immigration (“Director”) dated 6 August 2020 rejecting the applicant's non-refoulement claim on all applicable grounds[1]. The Board’s Decision can be viewed at the following hyperlink: -

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2022/HCAL000909_2022_files/the_Board's_Decision.pdf

2.  In his Form 86, the applicant named the Adjudicator of the Board and the Director as the proposed respondents, and the Board as the proposed interested party.  As the Board should have been the proper putative respondent and the Director the putative interested party, the Form 86 shall be accordingly amended on the court’s own motion. 

3.  The basis of the applicant’s claim was that, if refouled to Pakistan, he, together with his wife, his son and daughter born in Hong Kong would be harmed or killed by Arslan (who had been previously arranged to marry the applicant’s wife) and the step family of the applicant’s wife due to the heritage dispute over the estate of the wife’s deceased father.  The applicant’s wife and children are not the subject applicants of the Leave Application.  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 for a hearing of the Leave Application, this court scheduled a hearing on 14 April 2026.  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.  A leave application operates as a ‘filtering’ process.  Hence, there is no requirement or expectation to give elaborate reasons for my decision.[2] It is therefore 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.  The Form 86 provided no such grounds.  In the supporting affirmation, the applicant stated that he and his family would still face harm if refouled. 

7.  At the hearing, the applicant said that he would need to stay in Hong Kong for about 1 and ½ year more to attend to his medical issue in Hong Kong. 

8.  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 had decided to deal with the applicant’s appeal by way of a paper review.  The Board assessed that the risk of harm from the wife’s step-family to have been low as it found that the step-family had not acted on their threats.  As for the risk of harm from the wife’s ex-fiancé, the Board found that he had not sought to harm the applicant and his family physically prior to their leaving Pakistan.  As for state protection, the Board found that the applicant could not return to his home locality and that he could not rely on effective state protection due to Arslan’s ties with influential individuals in the locality.  However, internal relocation would be reasonably 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. 

9.  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.  The applicant’s grounds stated in the supporting affirmation were only about his personal circumstances and were not grounds for the review.  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].

Whether to extend time for the late application

10.  Another matter I need to consider is the delay.  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 of the Board’s Decision.  The applicant was late for about 9 months.  

11.  At the hearing, the applicant stated that the delay was due to Covid. It was only when he went to the Immigration Department for the regular reporting that he was informed that his case had been concluded. 

12.  I do not accept the applicant’s explanation.  When the Board’s Decision was delivered, Covid was already over.  Having regard to the lengthy delay, and the lack of good reason for the delay, and more importantly, the lack of good prospects of success of his intended challenge, I refuse to exercise my discretion to grant the applicant an extension of the time to file the Leave Application out of time. 

Orders

13.  The Form 86 be amended on the court’s own motion. 

14.  There shall be no extension of time for the applicant to file the application for leave to apply for judicial review out of time. 

15.  The applicant’s application for leave to apply for judicial review 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