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

HCAL 2571/2025

[2026] HKCFI 2973

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2571 of 2025

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 20 November 2025, 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 7 March 2017 (“Board’s Decision”) dismissing the applicant's appeal against a decision of the Director of Immigration (“Director”) dated 29 May 2015 rejecting the applicant's non-refoulement claim on all applicable grounds[1] except BOR 2 risk ground.  The Board’s Decision can be viewed at the following hyperlink: -

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2025/HCAL002571_2025_files/the_Board's_Decision.pdf

2.  In the Form 86, the applicant named the Board and the Director as the proposed respondents, and did not name any 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 would be harmed or killed by a powerful farming landlord who had illegally occupied the farm the applicant worked on and owned by two landlords.  The illegal occupation led to the killing of the son of the said powerful landlord. As a result, the applicant also feared that the police would arrest him in connection with the killing of the son.  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 averred unfairness and error of law as the Board was biased in its conclusion.  He further alleged that the Board’s assessment of credibility was procedurally unfair and irrational in having excluded significant aspects of his evidence, and not attaching weight to hearsay evidence.

7.  At the hearing, the applicant had nothing to elaborate on the written grounds as he stated that the Leave Application was prepared by a friend.  He has not read the Board’s Decision.   

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 applicant was absent from the hearing before the Board despite the various attempts the Board had made to accommodate his attendance.  Hence, the Board determined the applicant’s case on papers.  Despite some unexplained suspicious aspects of the applicant’s claims, the Board made no finding on credibility.  The Board however found that the applicant would not face any risk of harm if refouled as the past ill-treatment did not reach the requisite level of severity.  It further found that state protection and 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 vague and general and did not condescend to particulars.  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 more than 8 years.  The delay was extremely lengthy.  A very good reason shall be required to be provided.

11.  The applicant’s explanation for the delay was that he went to hiding from the police for 8 years as he was facing some criminal charges at the time. He said he was arrested by police on 15 January 2025 and served 8 months imprisonment for a conviction involving the use of a forged identity card.

12.  I do not accept the years of hiding is good reason for the delay.  The applicant was not able to tell me when he went to hiding to avoid arrest started.  What he did and where he lived during the long period when he allegedly was in hiding.  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