MAHMOOD SHAHID v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 124/2021

[2025] HKCFI 5519

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 124 of 2021

 Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

Introduction

1.  By Form 86 filed on 3 February 2021 (the “Form”), the Applicant applied for leave to apply for judicial review (the “Leave Application”) against the decision of the Torture Claims Appeal Board / Non‑refoulement Claims Petition Office (the “Board”) dated 19 April 2017 (the “Board’s Earlier Decision”).

2.  The Applicant requested an oral hearing for the Leave Application.  The hearing took place on 13 October 2025 and the Applicant attended in person.  At the hearing, I pointed out to the Applicant that there was a subsequent decision given by the Board dated 15 October 2020 (the “Board’s Decision”). I asked the Applicant to confirm whether he is seeking leave to apply for judicial review against the Board’s Earlier Decision or the Board’s Decision. In response, the Applicant looked confused and simply said he had no information regarding this.

3.  I further pointed out to the Applicant that the Leave Application was filed out of time and asked whether he had anything to say about the delay.  In response, the Applicant said he had no knowledge about the delay. 

4.  Apart from the above, the Applicant had nothing to say in respect of the Leave Application.

Background

5.  The Applicant’s background, the basis of his claim and the arguments he advanced had been set out in detail in the Board’s Earlier Decision and in the Board’s Decision, and it is not necessary for me to repeat the same here.  The hyperlinks to the Board’s Earlier Decision[1] and the Board’s Decision[2] are included below for reference.

Discussion

6.  Given the Applicant could not confirm at the hearing which of the Board’s decisions he wished to apply for judicial review, I shall proceed with the Leave Application on the assumption that he intends to apply for judicial review against both decisions.

7.  The Board’s Earlier Decision was issued on 19 April 2017.  The Board’s Decision was issued on 15 October 2020.  The Form was however only filed on 3 February 2021.  The Leave Application was accordingly filed out of time for about 3.5 years and about 2 weeks respectively.

8.  No application for extension of time to file the Leave Application was made by the Applicant.  There was no explanation for the delay in either the Form or the supporting Affirmation.  At the hearing on 13 October 2025, the Applicant simply stated that he had no knowledge of the delay. 

9.  In considering whether to extend the time for applying for leave for judicial review, the Court shall have regard to, inter alia, the following:- (a) the length of the delay; (b) the explanation of the delay; (c) the merits of the substantive application; (d) the prejudice; and (e) the question of general public importance: Re Thomas Lai [2014] 6 HKC 1, at §§43-45; AW v Director of Immigration and William Lam CACV 63/2015, 3 November 2015, at §27.

10.  In the present case, the delay in respect of the Board’s Earlier Decision was very substantial.  On the other hand, the delay in respect of the Board’s Decision was relatively short.  As mentioned above, there is no explanation for the delay.  As the merits of the intended judicial review is a significant factor to be considered in determining whether the Court should extend the time to apply for leave for judicial review, I shall proceed to consider the merits of the Leave Application.

11.  The applicable legal principles relating to application of this sort are well established.  The role of the Court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director of Immigration (the “Director”) and the Board.  Though in non-refoulement cases, the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board.  Assessment of evidence, country of origin information (COI) materials, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director).  The Court will not intervene by way of judicial review unless there are errors of law, procedural unfairness or irrationality in the decision of the Board.  (See Nupur Mst v Director of Immigration [2018] HKCA 524, at §14)

12.  In the Form, the Applicant did not provide any grounds in support of the Leave Application.  In the supporting Affirmation, the Applicant simply stated that he does not agree with the decision of the Board.       

13.  I have considered the Board’s Earlier Decision and the Board’s Decision in detail.  I do not find any error of law, procedural unfairness or irrationality.  Neither has the Applicant been able to demonstrate any of the same.  There is nothing to indicate that the Board had failed to take into account any relevant matters.  The Board’s Earlier Decision was comprehensive with adequate reasons provided.  The Board was entitled to reject the Applicant’s claim based on the evidence and the reasons provided (§§22-61 of the Board’s Earlier Decision).  In respect of the Board’s Decision, it was in relation to “BOR2” risk only.  Given the Applicant had failed to provide additional materials or facts in respect of the “BOR2” claim (§3 of the Board’s Decision), and given the findings made in the Board’s Earlier Decision, the Board was entitled, and indeed correct in my view, to dismiss the Applicant’s claims under “BOR2” as well (§19 of the Board’s Decision).  Both the Board’s Earlier Decision and the Board’s Decision satisfy the enhanced Wednesbury test and are not Wednesbury unreasonable or irrational.  I am not satisfied that the Applicant’s intended challenge to the Board’s Earlier Decision and the Board’s Decision is reasonably arguable with any realistic prospects of success. 

14.  Leave application of this sort is meant to be a filtering process and I am not expected to give elaborated reasons for my decision (see Re Zunariyah [2018] HKCA 14, at §23).  Suffice for me to state that in reaching the decision, I have considered all the relevant documents before me.    

Conclusion

15.  As the Form was filed out of time and without any valid explanation for the delay, and more importantly, the challenge to the Board’s Earlier Decision and the Board’s Decision is not reasonably arguable, I would have refused to grant an extension of time even if the Applicant made such application.  For completeness, the Leave Application would be refused in any event even if it was filed within time based on the reasons stated above. In the premises, I make an order that the Leave Application 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