MUHAMMAD FAISAL v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 190/2021

[2025] HKCFI 5619

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 190 of 2021

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

Following;

	consideration of documents only;          or
	consideration of documents and the Applicant being absent in open court;

1.  Form 86 be amended as follows:- (1) the Director of Immigration be named as the Putative Interested Party; and (2) the date of the decision in respect of which relief is sought be amended to 6 December 2018.

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

Observations for the Applicant:

Introduction

1.  By Form 86 filed on 22 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 6 December 2020. The date of the decision of the Board stated on the Form was probably a typo. The Court is not aware of a Board’s decision dated 6 December 2020. The Board issued a decision relating to the Applicant’s claim on 6 December 2018 instead (the “Board’s Decision”). This was also the decision exhibited by the Applicant to the supporting Affirmation. Accordingly, I make an order to amend the date of the decision stated on the Form.

2.  In the Form, the Applicant did not name any proposed interested party. As it is trite that the Director of Immigration (the “Director”) should be the proposed interested party in an application of this sort, I make an order to amend the Form in this regard on the Court’s own motion.

3.  The Applicant requested an oral hearing for the Leave Application. The hearing took place on 20 October 2025 but the Applicant did not attend the hearing. Notice of Hearing was issued to the Applicant on 2 October 2025 at the address provided by the Applicant on the Form. On 16 and 17 October 2025, attempts were also made to contact and remind the Applicant of the hearing by phone at the number provided by the Applicant on the Administrative Form and on Form No. 8 but in vain. On 20 October 2025, i.e. the day of the hearing, the Court received the returned Notice of Hearing, indicating that the address was incomplete and so the Notice of Hearing could not be successfully served. The Applicant has not updated the address in the Court to date.

4.  It is the duty of a litigant to give the court an address to which correspondence or notice can come to his attention in a timely manner. The consequence of any delay or failure occasioned by the ineffectiveness of such an address would fall on the shoulder of the litigant (Re Hasmi Rizwan Imran [2018] HKCA 439, at §15).

5.  As the Notice of Hearing was issued to the address provided by the Applicant on the Form, the Applicant only has himself to be blamed if such address provided is defective. In the premises, I consider it appropriate to proceed with the Leave Application in the absence of the Applicant.

Background

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

Discussion

7.  The Board’s Decision was issued on 6 December 2018. The Form was however only filed on 22 February 2021. The Leave Application was accordingly filed significantly out of time for almost 2 years.

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.

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 was very substantial, and 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 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 is not satisfied with the Board’s Decision, and that his life is in danger in his country.

13.  I have considered 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 Decision was comprehensive with adequate reasons provided. The Board was entitled to reject the Applicant’s claims based on the evidence and the reasons provided (§§6-71 of the Board’s Decision). I do not see any errors committed by the Board in the reasoning. The Board’s Decision satisfies the enhanced Wednesbury test and is not Wednesbury unreasonable or irrational. I am not satisfied that the Applicant’s intended challenge of 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 significantly out of time and without any valid explanation for the delay, and more importantly, the challenge to 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 that the Form be amended as described above and 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