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

HCAL 391/2020

[2025] HKCFI 3221

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 391 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 the Applicant being absent in open court;

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

2.   There shall be no extension of time for the filing of the Form 86.

3.   The 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 12 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 23 January 2017 (“Board’s Decision”) dismissing the applicant's appeal against a decision of the Director of Immigration (“Director”) dated 24 March 2015 (“Director’s Decision”) rejecting the applicant's non-refoulement claim on all applicable grounds except BOR 2 risk^[1].  The Board’s Decision can be viewed at the following hyperlink: -

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000391_2020_files/the_Board's_Decision.pdf

2.  In his Form 86, the applicant named the Board as the interested party. As the Director should have been 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 was that he would be harmed or killed by his uncle due to a land dispute.  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 19 June 2025.  A notice of hearing with a reminder[2] of the consequence of absence dated 13 May 2025 was sent to the applicant’s last known address by ordinary post.  The applicant did not turn up at the hearing.  Before the hearing, the court’s staff called the applicant’s given telephone number several times and left messages, as the calls were not answered. The information before this court shows that the said notice of hearing has not been returned undelivered through the post.

5.  In the circumstances, this court will dispose of the Leave Application according to the materials already placed before the court.

Discussion

6.  A leave application operates as a ‘filtering’ process and there is no requirement or expectation to give elaborate reasons for my decision.[3]  It is sufficient to state my observations after considering the Board’s Decision and the applicant’s materials adduced.

7.  In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly[4], and further to make full and frank disclosure of all material facts to be verified by an affidavit.   

8.  In his Form 86, the applicant did not raise any grounds for judicial review. In his supporting affirmation, he only stated that he could not go back to his country. 

9.  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.[5] In the present case, in the assessment of the credibility of the applicant, the Board found that the evidence of the applicant to be wholly unreliable with glaring contradictions between his earlier written statement, interview and notice of appeal and the evidence he gave at the hearing.  The Board was not satisfied that there were substantial grounds for believing that the applicant would be subjected to ill-treatment were he refouled.  The Board further found that the past experiences of the applicant did not meet the requisite minimum level of severity. In conclusion, the Board found that the applicant failed to show that there was a reasonable possibility that he would face a risk of harm were he refouled. The Board also found 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.

10.  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.  I am satisfied that the Board was entitled to come to a finding that the applicant’s evidence lacked credibility, and rejected his claims.  The applicant did not provide any grounds in support of the Leave Application either in the Form 86 or in his supporting affirmation. 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[6].

Whether to grant extension of time

11.  More importantly, there is a substantial delay in the 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 Application expired on 23 April 2017, and this application is late for almost 3 years.

12.  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 significant and inordinate. Very good reason is required to explain for the delay.

13.  The applicant however has provided absolutely nothing to explain for the delay. In view of the lengthy delay, the absence of explanation, and importantly, the lack of merits, I refuse to exercise my discretion to grant extension of time.

Orders

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

15.  There shall be no extension of time for the filing of the Form 86.

16.  The 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