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HCAL 881/2022
[2026] HKCFI 2969
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 881 of 2022
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BETWEEN
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Ahmad Mamraiz |
Applicant |
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and |
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Torture Claims Appeal Board / |
Putative |
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Non-Refoulement Claims Petition Office |
Respondent |
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and |
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Director of Immigration |
Putative |
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Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following:
Order by Deputy High Court Judge Levy:
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 5 September 2022, the applicant applied for leave to apply for judicial review (“Leave Application”). The intended judicial review was against the decisions of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) dated 30 June 2022 (“Board’s Decision”) dismissing the applicant's appeal against the decisions of the Director of Immigration (“Director”) dated 20 February 2017 (“Director’s Decision”) rejecting the applicant's non-refoulement claim on BOR 2 risk ground[1]. The applicant’s other 3 grounds[2] had been rejected by the Director on 5 February 2015 against, the appeal against which had been dismissed by the Board on 16 January 2017. The Board’s Decision can be viewed at the following hyperlink: -
https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2022/HCAL000881_2022_files/the_Board's_Decision.pdf
2. The basis of the applicant’s claim was that, if refouled to Pakistan, he would be harmed or killed by Surfaraz and his associates after his team lost in a friendly cricket match to the applicant’s team. 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.
3. Pursuant to the applicant’s request for a hearing of the Leave Application, this court scheduled a hearing on 14 April 2026. A notice of hearing with a reminder[3] of the consequence of absence dated 25 March 2026 was sent to the applicant’s last known address by ordinary post. The applicant was absent from the hearing. Before the hearing, phone calls were made to the applicant’s given telephone number before the hearing but to no avail. Since the information before this court shows that the said notice of hearing has not been returned undelivered through the post, and that the applicant had been separately notified by phone, this court will dispose of the Leave Application according to the materials already placed before the court.
Discussion
4. A leave application operates as a ‘filtering’ process. Hence, there is no requirement or expectation to give elaborate reasons for my decision.[4] It is therefore sufficient to state my observations after considering the Board’s Decision and the applicant’s materials adduced.
5. In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly[5], and further to make full and frank disclosure of all material facts to be verified by an affidavit. Both the Form 86 and the supporting affirmation provided no such grounds.
6. 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.[6] In the present case, the applicant was late for more than 4 years and 5 months when he filed the NOA. Pursuant to s.37ZT of the Immigration Ordinance[7], the Board determined, as a preliminary decision, whether to allow the applicant’s late filing of the NOA. After it had considered the applicant’s explanation on account of his depression and drugs taking, the Board found that the applicant only made bare assertions without any evidence in support. The Board did not accept that the applicant had exercised all due diligence to file the NOA within the specified period and that he had failed to do so because of circumstances beyond his control. The Board refused the late filing of the appeal against the Director’s Decision. These are findings of fact, which the court in a judicial review will not interfere with, subject to there being any public law errors.
Repealed provisions under the previous s.37ZT
7. Before 1 August 2021, the previous provisions under s.37ZT (2)(b) mandated the Board to take account of “any other relevant matters of acts within the knowledge of the Board”.
8. Additionally, s.37ZT (3) provided that the Board “may allow the late filing of the notice of appeal” if it is satisfied that “by reason of special circumstances, it would be unjust not to allow the late filing of the notice of appeal”.
9. However, s.37ZT (2)(b) was repealed. Section 37ZT (3) was replaced by the new 37ZT (3) as follows:
“The Appeal Board may allow the late filing of the notice of appeal if the person filing the notice provides sufficient evidence in wri6ting to satisfy the Board that the person-
(a) had exercised all due diligence to file the notice within the period specified … but
(b) failed to file the notice within the period because of circumstances beyond the person’s control”
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 under s.37ZT and observed a high standard of fairness. The grounds the applicant had advanced no grounds at all in support of the Leave Application. 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[8].
Order
11. The applicant’s application for leave to apply for judicial review be dismissed.
Dated the 10th day of June 2026
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( Alfred CHAN )
for Registrar, High Court
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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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant
on 10/6/2026
Ahmad Mamraiz
Applicant’s ref. no:
Nil. |
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 10/6/2026
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
BOR 1182/21/8/1/P306,
USM 1012/15/2/160/P310
Director of Immigration
Putative Interested Party’s ref. no.:
RBCZ 9000163/17 (formerly QA T/C 773/14, RBCZ 1909/09), QA T/C 773/14 (formerly RBCZ/1909/09)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] Tis refers to the risk of violation of the right to life under Art. 2 of s.8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”)
[2]The grounds are risk of torture under Part VIIC of the Immigration Ordinance (“torture risk”) , BOR 3 risk (this refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Art 3 of HKBOR and persecution risk (This refers to the risk of persecution with reference to the non-refoulement principle under Art. 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol) under the USM (This refers to the Hong Kong Government’s Unified Screening Mechanism (“USM”) implemented since 3 March 2014 to process claims for non-refoulement protection. For a detailed description of the USM, see the judgment of Zervos J in HKSAR v Vu Thang Duong & Anor [2015] 3 HKC 293.
[3] “If the Applicant does not appear at the hearing, he/she will be deemed to have waived his/her right to make oral submissions at the hearing and the Court will deal with his/her application according to the paper already placed before the Court”.
[4] Re Zunartyah [2018] HKCA 14 at [23].
[5] Ho Loy & Another v Director of Environmental Protection, HCAL 21/2015, 22 December 2016 at [142].
[6] Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.
[7] Unless otherwise specified, all references to the statutory provisions in this decision are references to the prevailing Immigration Ordinance.
[8] Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676
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