ZULLU MOHAMED SAIDI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 3676/2019

[2025] HKCFI 1460

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 3676 of 2019

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.   Form 86 be amended, naming only the Torture Claims Appeal Board/Non-refoulement Claims Petition Office and the Director of Immigration as the Putative Respondent and the Putative Interested Party respectively.

2.   No extension of time for the Applicant to apply for leave to apply for judicial review out of time.

Observations for the Applicant:

Introduction

1.  By Form 86 (“Form 86”) filed on 10 December 2019, the Applicant applies for leave to apply for judicial review (“the Leave Application”) of the decision of the Torture Claims Appeal Board/ Non-refoulement Claims Petition Office (“the Board”) dated 20 July 2018 (“the Board’s Decision”) affirming the decision of the Director of Immigration dated 26 September 2017, which rejected his claim for non-refoulement on all applicable grounds under the Unified Screening Mechanism (USM).

2.  On my own motion, I have amended Form 86, correctly naming only the Board and the Director as the proposed respondent and the proposed interested party respectively.

Background

3.  The Applicant’s personal background, the incidents alleged to show that he would be harmed or killed by his creditor in Tanzania, and the immigration and procedural history, etc. were set out in the Board’s Decision.  I do not see it necessary to restate them here.  For completeness’ sake, reference can be made to the Board’s Decision, the hyperlink to which is included below[1].  Unless otherwise indicated, the Board’s abbreviations and descriptions are adopted below. 

Discussion

4.  In this case, the Leave Application is made out of time.  Order 53, rule 4 of the Rules of the High Court provides:

“(1) An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made.

(2)     Where the relief sought is an order of certiorari in respect of any judgement, order, conviction or other proceeding, the date when grounds for the application first arose shall be taken to be the date of that judgement, order, conviction or proceeding.”

5.  Section 21K(6) of the High Court Ordinance (Cap. 4) empowers the Court to refuse to grant leave for making an application for judicial review or any relief sought if it considers that there has been an undue delay in making the application.  Applying the legal principles set out by the Court of Appeal in AW v Director of Immigration [2016] 2 HKC 393 and by G Lam J (as he then was) in Re Thomas Lai Application for Leave to Apply for Judicial Review [2014] 6 HKC 1, I am not satisfied that time should be extended for the Applicant to apply for leave to apply for judicial review.

6.  First, the Applicant has neither applied for extension of time, nor explained the delay in his supporting affirmation.

7.  Second, the Applicant’s intended challenge of the Board’s Decision is not reasonably arguable with any realistic prospects of success in any event: see Peter Po Fun Chan v Winnie Cheung & Another (2007) 10 HKCFAR 676.  After rigorously examining and anxiously scrutinizing the Board’s Decision, I do not see any basis or ground to challenge the legality, rationality or fairness of the process below.  The Applicant has failed to identify any valid and effective public law grounds for his intended judicial review: see Ho Loy & Another v Director of Environmental Protection, HCAL 21/2015 (22 December 2016) at §142.  In the supporting affirmation, he merely expresses his ‘disagreement’ with the Board’s Decision and reiterates that he has concerns about the dangers of returning to his country.  It is well-established that it is not for the Court to usurp the role of the primary decision maker in these circumstances.  Judicial review does not operate as a further avenue of appeal: see Re Zunariyah [2018] HKCA 14; Re Qadir Sher [2018] HKCA 160; Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Lakhwinder Singh [2018] HKCA 246 and Re Masoom Parvez [2018] HKCA 163.

8.  Third, it is significant that the prejudice to the Applicant if time is not extended should be carefully weighed against the impact on public administration of allowing a frivolous and unmeritorious leave application to proceed out of time.  It is in the overall public interest to adopt a disciplined approach for applications of this nature to preserve the efficiency of public administration and to prevent disruptions. 

Conclusion

9.  As I refuse to extend time for the Applicant to apply for leave to apply for judicial review, the Leave Application is out of time and should fall away.

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