HUSSAIN SARDAR v. TORTURE CLAIMS APPEAL BOARD

HCAL 433/2021

[2026] HKCFI 1786

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 433 OF 2021

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

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

1.  On this court’s own motion, the name of the applicant be amended to “Hussain Sardar”, and the name of the putative respondent be amended to “Torture Claims Appeal Board”.

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

Observations for the applicant:

The leave Application

1.  By way of Form 86 dated and filed on 26 March 2021, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board (“the Board”) dated 1 September 2020 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2021/HCAL000433_2021_files/the_Board's_Decision.pdf

2.  The Board found that the applicant had not substantiated a case for non-refoulement protection on the ground of risk of life under BOR 2[1] under the Unified Screening Mechanism (“the USM”). Hence, the Board dismissed the applicant’s petition against the further decision of the Director of Immigration (“the Director”) dated 9 May 2017, which rejected the applicant’s non-refoulement claim on the ground of BOR 2, and confirmed the same.

3.  The Director had previously in his decision dated 6 March 2015 (“the Director’s Previous Decision”) rejected the applicant’s claim for non-refoulement protection on the grounds of Torture Risk[2], BOR 3 Risk[3] and Persecution Risk[4]. By its decision dated 9 March 2017 (“the Board’s Previous Decision”), the Board dismissed the applicant’s appeal/petition against the Director’s Previous Decision. Thus, the applicant’s non-refoulement claim on the grounds of Torture Risk, BOR 3 Risk and Persecution Risk had been finally disposed of by the Board’s Previous Decision, and it was not necessary for the Board to deal with these 3 risks again in the Board’s Decision.

Amendments

4.  The applicant spelt his own name as “Hossain Sardar” in Form 86, when it should be “Hussain Sardar”. He also misspelt the Board’s name when he named it as the putative respondent.

5.  Thus, this court makes an order on its own motion to amend the name of applicant to “Hussain Sardar” and the name of the putative respondent to “Torture Claims Appeal Board”.

Late application

6.  By virtue of Order 53, rule 4(1) of the Rules of the High Court, Cap 4A, the applicant had to make the Leave Application within 3 months when the grounds for the Leave Application first arose, ie when the Board’s Decision was made.

7.  However, the applicant filed Form 86 on 26 March 2021, which was more than 6 months after the Board’s Decision (made on 1 September 2020). The applicant was hence late for more than 3 months in making the Leave Application, and this court has to consider whether there is any good reason to extend the time for the applicant to make the Leave Application.

8.  As held in AW v Director of Immigration [2016] 2 HKC 393, the criteria for granting an extension of time are:

(i)  the length of the delay;

(ii)  the reason for the delay;

(iii)  the merits of the intended application; and

(iv)  any prejudice to the putative respondent and to public administration.

9.  The applicant did not make any application for extension of time and provided no explanation for the delay when he filed the Leave Application. At the oral hearing before this court on 26 February 2026, the applicant said that he thought he had done everything in time and he was not aware that the application was filed late.

10.  A delay of more than 3 months is substantial, and the explanation given by the applicant is clearly not satisfactory. More importantly, there is no merits in the intended judicial review as discussed below.

11.  Having considered the above criteria, this court is not prepared to grant any extension of time to the applicant to file the Leave Application, even if an application for extension of time was made. The Leave Application can therefore be dismissed on the ground of being made out of time alone.

12.  However, for the sake of completeness, this court will still examine the merits of the Leave Application.

The applicant’s case

13.  It is not necessary for this court to repeat the details of the applicant’s case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above.

14.  In sum, the applicant claimed for non-refoulement protection because if refouled to Pakistan, he would be harmed or killed by his paternal uncle Jethu Ram and his uncle’s sons due to a land dispute.

Oral hearing

15.  The applicant requested for an oral hearing and his case was heard on 26 February 2026.

16.  When this court asked the applicant to clarify the ground of his intended judicial review which was stated in a document titled “GROUNDS” annexed to his supporting affirmation dated 26 March 2021, the applicant said that he did not know what was written there. He did not write the grounds himself but someone did it for him. After the document was translated to the applicant by the interpreter, the applicant said that he did not understand its contents and would not rely on it. He then asked for an adjournment for him to prepare his grounds for judicial review.

17.  This court refused the applicant’s request for an adjournment as he could just orally inform this court his grounds at the hearing. The Leave Application was filed in 2021. The applicant should have ample time to prepare his grounds for judicial review, if he had a real intention to do so. Thus, there was no reason to grant an adjournment for him to prepare the grounds at all.

18.  After the refusal, the applicant said that he could produce another document as his grounds. However, when he produced the document to this court, it was in fact the same as the one that was attached to his supporting affirmation. The applicant then said that he would rely on the grounds stated in the said document. He only added that his life was in danger in Pakistan and he could not return to his home country, as he would be tortured, abused or even imprisoned and he had no family there.

Grounds for judicial review

19.  The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).

20.  The applicant did not identify any grounds for the intended judicial review in Form 86. The contents of the document with the title “GROUNDS” that was annexed to his supporting affirmation were reproduced as follows:-

“(1) I HAVE ONLY ONE QUESTION ABOUT ADJUDICATOR DECISION. ADJUDICATOR TOTALLY DID NOT READ OR DID NOT PAY ANY ATTENTION. STARTING HE TOLD ABOUT MY CLAIM AFTER 2 OR 3 PAGAGARAPH HE TOLD ANOTHER BOY CLAIM. HE CANCEL AN INDIAN BOY CLAIM AND GAVE TO ME.”

21.  The contents of the said document are clearly incomprehensible. As aforementioned, the applicant himself failed to understand what were written there, even though he wanted to rely on this document.

Discussion

22.  First of all, as aforesaid, the contents of the said document are clearly incomprehensible, and even the applicant could not understand what were written there after the document was translated to him. The Board’s Decision also did not reveal anything related to “an Indian boy”, but was solely related to the applicant’s petition. Thus, the contents of the said document cannot be a valid ground for the applicant’s intended judicial review and can be simply ignored.

23.  The applicant’s allegation of being at risk upon refoulement had already been fully assessed but rejected by the Board. If the applicant intends to challenge the Board’s finding of facts, it is not permissible in an application for judicial review.

24.  The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision and intervene by way of judicial review only for errors of law, procedural unfairness or irrationality (see Nupur Mst v Director of Immigration [2018] HKCA 524).

25.  Thus, even though the applicant has failed to establish any valid ground for challenging the Board’s Decision, this court will still scrutinize the Board’s Decision for any errors of law, procedural unfairness or irrationality.

26.  The Board did not hold an oral hearing in assessing the applicant’s petition on BOR 2 Risk. As can be seen from the Board’s Previous Decision, the applicant’s previous appeal/petition against the Director’s Previous Decision on the grounds of Torture Risk, BOR 3 Risk and Persecution Risk was heard and determined by the same member of the Board. Even though a hearing was arranged for the applicant to attend before the Board regarding his previous appeal/petition, the applicant was absent at the hearing.

27.  It is not a must for the Board to hold a hearing to determine an appeal/petition by a non-refoulement claimant. Provided that the degree of fairness achieved was appropriate to the task, it was for the decision-maker to decide how to proceed, and to decide whether an oral hearing was necessary. Having considered all the material and documents before it, the Board found no dispute in facts and in law that required an oral hearing for its disposition. The Board was satisfied that in all circumstances of the case, there would be no procedural unfairness to the applicant if the petition was determined without an oral hearing.

28.  The Board considered that in its findings in dealing with the applicant’s previous appeal/petition, the applicant could not show substantial risks of torture, CIDTP[5] or persecution. The applicant submitted no new facts, information and materials in respect of his claim of BOR 2 Risk. The applicant advanced no evidence to establish that he was a criminal wanted by the police in his country or he was going to face serious charge or punishment in his country.

29.  Thus, the Board found that the applicant had failed to prove that there was a genuine and substantial risk, as well as a personal risk of irreparable harm in his country. Thus, the applicant’s claim for non-refoulement protection on the ground of BOR 2 Risk under the USM failed.

30.  The assessment of evidence and risk of harm was primarily within the sole ambit of the Board. The Board was entitled to come to its own conclusion. This court finds nothing wrong or unreasonable in the way the Board reached its decision, including the decision not to hold an oral hearing.

31.  Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly set out the law and key legal principles relating to BOR 2 Risk of the applicable grounds under the USM, the burden of proof and the standard of proof. The Board also correctly identified the issues and observed a very high standard of fairness. This court could detect no errors of law, procedural unfairness or irrationality in the Board’s Decision. The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision.

32.  As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, for the court to grant leave to apply for judicial review, the claim has to be a reasonably arguable claim which enjoys realistic prospects of success. It is the view of this court that the applicant has failed to establish such a claim and hence leave must be refused.

Conclusion

33.  For reasons aforesaid, the Leave Application is dismissed for being made out of time and also for lack of merits.

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