Sadawer Hussain v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

Case No.HCAL 3599/2019[2025] HKCFI 800

Court

High Court CFI

Date09 Apr 2025

Judge—

Case Document

100%Judiciary

HCAL 3599/2019

[2025] HKCFI 800

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 3599 of 2019

BETWEEN
	Sadawer Hussain	Applicant
	and
	Torture Claims Appeal Board/ Non-refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative
		Interested Party

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

Following:

consideration of the documents only; or

consideration of the documents and the Applicant being absent in open court

Order by Deputy High Court Judge (Non-refoulement Claims) Teresa Wu made on 10 February 2025:

(1) Form 86 be amended, namely only the Torture Claims Appeal Board/ Non-refoulement Claims Petition Office and the Director of Immigration as the Putative Respondent and the Putative Interested Party respectively.

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

Observations for the Applicant:

1.By Form 86 (“Form 86”) filed on 3 December 2019, the Applicant applies for leave to apply for judicial review (“the Leave Application”) of the decision of the Torture Claims Appeal Board/ Non-refoulement Claims Petition Office (“the Board”) dated 22 October 2019[1] (“the Board’s Decision”)[2] refusing his late filing on 5 July 2017 of a Notice of Appeal/ Petition against the decision of the Director of Immigration (“the Director”) made on 4 May 2017.

2.I have amended Form 86 on my own motion, correctly naming only the Board and the Director as the putative respondent and the putative interested party respectively.

3.The Applicant is absent from the oral hearing. On the authority of Re Abdus Salam, CACV 125/2019 (judgment dated 3 October 2019) [2019] HKCA 1091, I proceed to deal with the Leave Application based on the materials placed before me. I have considered the Board’s reasons as set out in the Board’s Decision with rigorous examination and anxious scrutiny, applying an enhanced standard as required by law in view of the seriousness of the issues at hand. I am not remotely satisfied that the Applicant’s intended challenge of the Board’s Decision is reasonably arguable with any realistic prospects of success at all (see Peter Po Fun Chan v Winnie Cheung & Another (2007) 10 HKCFAR 676).

4.In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly (see Ho Loy & Another v Director of Environmental Protection, HCAL 21/2015 (judgment dated 22 December 2016) at §142) and to make full and frank disclosure of all material facts to be verified by an affidavit. However, no such grounds are identified in the present case. In the supporting affirmation, the Applicant also has merely asserted danger and expressed ‘disagreement’ with the Board’s Decision. The Applicant has plainly failed to point out any procedural or other public law errors allegedly committed by the Board that the Court should intervene.

5.I am satisfied that, taking these matters into account, the Leave Application is an abuse and the Applicant has no real intention to pursue it. Where there is abuse thus rendering there to be an abuse of process, dismissal for want of prosecution is an available course to take (see Re Abdus Salam (supra) at §16, referring to Re Syed Ahmed Rafiq [2018] HKCA 178).

6.As such, I make an order that the application herein for leave be dismissed for want of prosecution.

Dated the 9^th day of April 2025.

(Allen LEE)
for Registrar, High Court

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:
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)).		Sent to the Applicant on 9/4/2025 Sadawer Hussain Applicant’s ref. no: Nil		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 9/4/2025 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 882/15/2/30/P267 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 621/09 (formerly RBCZ 47/09) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)