KHAN SHER alias IQBAL MUHAMMAD v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 360/2022

[2026] HKCFI 1234

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 360 of 2022

  Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following;

1.   No extension of time be granted for the application for leave to apply for judicial review.

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

Observations for the Applicant:

Introduction

1.  By a Form 86 filed on 18 May 2022 (the “Form”), the Applicant applied for leave to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board”) dated 22 December 2021 (the “Board’s Decision”), which affirmed the decision of the Director of Immigration dated 28 October 2020 (the “Director’s Decision”).

2.  The Applicant requested an oral hearing for the application.  The hearing took place on 2 February 2026 and the Applicant attended in person.  

Background

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

Discussion

4.  The Board’s Decision was issued on 22 December 2021.  The Form was however only filed on 18 May 2022.  The present application was therefore filed out of time for about 2 months.  

5.  No application for extension of time to file the present application was made by the Applicant.  There was no explanation for the delay in either the Form or the supporting affirmation.  

6.  In considering whether to extend the time for applying for leave for judicial review, it is well established that the Court should have regard to, inter alia, the following factors: (1) length of the delay; (2) explanation of the delay; (3) merits of the substantive application; (4) prejudice; and (5) questions of general public importance.  See Re Thomas Lai [2014] 6 HKC 1, at [43]-[45]; AW v Director of Immigration and William Lam [2016] 2 HKC 393 (CA), at [27].

7.  In the present case, there was a delay of about 2 months.  There was no explanation for the delay.

8.  More importantly, I am not satisfied that the Applicant’s intended application for judicial review of the Board’s Decision is reasonably arguable with realistic prospects of success.  See Peter Po Fun Chan v Winnie Cheung & Another (2007) 10 HKCFAR 676, at [14]-[17].

9.  The applicable legal principles in this area 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 decisions of the Board due to the seriousness of the issues at hand, the Court should not usurp the role of the Board.  Assessment of the evidence, country of origin information materials, risk of harm, state of 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].

10.  In the Form and the supporting affirmation, the Applicant did not provide any ground in support of his application.

11.  At the hearing on 2 February 2026, he in summary re-argued his case without identifying any errors of law, procedural unfairness or irrationality in the Board’s Decision.

12.  In the present case, the Board carefully considered the Applicant’s evidence.  A hearing was conducted on 11 August 2021.  The Board’s Decision was comprehensive with adequate reasons.  Bearing in mind the enhanced standard that should be adopted in scrutinizing the Board’s Decision, I do not find any errors of law, procedural unfairness or irrationality in the same. The Board was entitled to come to the conclusions it did and reject the Applicant’s claims (see, in particular, [47]-[72] of the Board’s Decision).  I am not satisfied the Applicant’s intended challenge of the Board’s Decision is reasonably arguable with realistic prospects of success.

13.  On the question of prejudice, none arises from my refusal to extend time for the Applicant to pursue an unmeritorious judicial review.  On the contrary, I consider that it is important to adopt a disciplined approach in a time extension application to prevent unnecessary disruption to public administration.  

14.  Lastly, I do not consider that the present application raises any question of general public importance.  

15.  As held in Re Zunariyah [2018] HKCA 14, at [23], leave application operates as a filtering process and there is no requirement or expectation to give elaborated reasons for my decision.  It suffices for me to state that in reaching this decision, I have considered all the relevant documents and evidence before me.

Conclusion

16.  For the reasons above, I refuse the Applicant’s leave application and make the orders as set out above.

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