Shahid Ali v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 3180/2019

[2025] HKCFI 3036

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3180 of 2019

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 Applicant being present in open court;

Order by Deputy High Court Judge K.W. Lung:

1.  The extension of time for the application for Judicial Review be refused; and

2.  The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the decision in the letter dated 13 July 2018 of the Torture Claims Appeal Board (“the Board’s Decision”), which stated that his application for withdraw of his appeal was approved and no further action will be taken by the Board in respect of the appeal. His application is late. His application shall not be later than 3 months from the date of the Board’s Decision[1], which expired on 13 October 2018. His application was filed on 28 October 2019, which is late for more than 1 year. This issue will be dealt with below.

2.The applicant asked for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court, he appeared before the Court on 6 June 2025.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

4.The applicant is a national of Pakistan. According to records, the applicant last arrived in Hong Kong on 30 December 2007 illegally by boat and was arrested by police on 1 February 2008. In due course, the applicant lodged his non-refoulement claim.

5.The applicant’s claim was based on his fear of being harmed or killed by his ex-girlfriend’s family especially her father.

6.According to the applicant, he has had multiple incidents with his ex-girlfriend’s family where he was attacked by the family because they believed that the applicant had a sexual relationship with their daughter. Details of his claim are set out at paragraph 6 of the Notice of Decision dated 17 March 2015 by the Director (the “Director’s Decision”).

The Director’s Decision

7.The Director considered the applicant’s claim in relation to the following risks:

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

c.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

d.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

8.By way of the Director’s Decision, the Director assessed the applicant’s claim on all applicable grounds except BOR 2 risk and dismissed his claim. In summary, the Director found that: the level of risk of being harmed or killed was assessed to be low, the family did not actively try to locate the applicant, and the influence of the ex-girlfriend’s family was very limited [12]; reasonable state protection was available [13]; and internal relocation alternatives were available and reasonable [14].

9.By way of the Director’s Further Decision dated 8 February 2017, the Director assessed the applicant’s claim on BOR 2 risk and dismissed his claim. In summary, the Director found that: the applicant did not provide further additional materials or facts [3]; and having carefully reviewed the applicant’s claim, in the absence of additional information, it was considered that the applicant failed to establish BOR 2 risk [6].

The Board’s Decision

10.The applicant appealed the Director’s Decision to the Board. On 8 January 2016, the Board conducted an oral hearing for his appeal.

11.Having considered the evidence, the Board found that the applicant failed to establish that he was entitled to non-refoulement protection on all applicable grounds besides BOR 2 risk [49]. In any event, the Board found that reasonable state protection was available [23-26] and internal relocation alternatives were available to the applicant [27-34]. In conclusion, the Board assessed that the applicant’s claim had failed under all applicable grounds except BOR 2 risk. It therefore dismissed his appeal and confirmed the Director’s Decision. See hyperlink
https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003180_2019_files/the_Board's_Decision.pdf.

12.As to the Director’s Further Decision, the applicant first appealed, but then applied to withdraw his petition against the Director’s Further Decision in a letter dated 11 July 2018 to the Board.

13.By the Board’s Decision, the Board considered the applicant’s application and was satisfied that there was good reason for the proposed withdrawal and confirmed the Director’s Further Decision.

Application for leave to apply for judicial review of the Board’s Decision

14.The applicant has filed Form 86 dated 28 October 2019 for leave to apply for judicial review of the Board’s Decision.

15.In his affirmation in support of his application, the applicant referred to his letter to withdraw, but further said that later he heard that his problem in his country was still going on.

DISCUSSION

16.As mentioned in paragraph 1, this application is late. In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted. I shall consider the merits of the applicant’s case.

17.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant admitted that he had submitted his letter to withdraw his appeal to the Board, thinking that his problem in his country had been solved.

18.In the Board’s Decision, the Board confirmed that his application was freely sought and that he understood the consequences of the withdrawal. The Board further stated that no further action would be taken by the Board in respect of his petition.

19.The Court of Appeal in Re Das Purnima Rani [2019] HKCA 669, Hon Yuen JA and Lisa Wong J, 13 June 2019, the Court of Appeal held:

“41…. …Once the Board dismisses an appeal against the Director’s refusal of a non-refoulement claim upon a valid withdrawal or abandonment of the appeal by the claimant, in the sense of being the result of a deliberate and informed decision, the appeal is no longer extant and the Board becomes functus officio with no jurisdiction to take any step regarding the appeal. … …s 37V(2)(b) of the Ordinance stipulates that a torture claim rejected by the Director is finally determined when the appeal against it, if one were lodged, was disposed of. Notwithstanding the lack of determination on the merits, the dismissal of an appeal on its withdrawal nevertheless disposed of the appeal. Otherwise, not only would there be no finality in the determination of such claims, much room would be created for abuse by claimants desirous of delaying their removal from Hong Kong by making last minute withdrawals and then subsequently applying for reinstatement of the appeals. …

42. The only option left to the claimant who has validly withdrawn his appeal to the Board is to make a fresh non-refoulement claim under s 37ZO(2) if he can fulfil the requirements in sub-ss (a) and (b) thereunder…. ”

20.The Board’s Decision is correct and the applicant has no cause to complain.

21.In the circumstances, the applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.

DISPOSITION

22.I refuse to extend time for the applicant to apply for leave to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.

Dated the 22^nd day of August 2025

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