Jamil Sham v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2397/2020

[2025] HKCFI 4509

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2397 of 2020

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 (Non-refoulement Claims) Philips Wong:

1.   Form 86 be amended as follows:- (1) the Torture Claims Appeal Board / Non‑refoulement Claims Petition Office be named as the Putative Respondent; and (2) the Director of Immigration be named as the Putative Interested Party.

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

Observations for the Applicant:

Introduction

1.By Form 86 filed on 7 December 2020 (the “Form”), the Applicant applied for leave to apply for judicial review (the “Leave Application”) against the decision of the Director of Immigration (the “Director”) dated 12 September 2018 (the “Director’s Decision”).

2.The Director’s Decision had already been superseded by the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (the “Board”) dated 24 January 2020 (the “Board’s Decision”). The Director’s Decision is not susceptible to judicial review once appeal to the Board had been pursued (see Re: Moshsin Ali [2018] HKCA 549, at §§31-45). Accordingly, in so far as the Applicant seeks leave to apply for judicial review in relation to the Director’s Decision, the application fails in limine and is hereby dismissed.

3.In the supporting Affirmation, the Applicant made reference to the Board’s Decision instead of the Director’s Decision (although the decision exhibited was the Director’s Decision). The Applicant also named the Board as one of the “defendants” in the supporting Affirmation. It is accordingly likely that the Applicant’s true intention is to apply for leave to apply for judicial review against the Board’s Decision. Since the Applicant was absent at the hearing on 25 August 2025 (see below) such that this Court could not ascertain the true intention of the Applicant, I shall proceed to consider the Leave Application as if the application is made in respect of the Board’s Decision as well.

4.In the Form, the Applicant named the Director as the proposed respondent, and the Immigration Department Removal Assessment Section as the proposed interested party. As the Board should be the proposed respondent whereas the Director should be the proposed interested party if the Applicant’s intention is to apply for judicial review against the Board’s Decision, I make an order to amend the Form on the court’s own motion.

5.The Applicant requested an oral hearing for the application. The hearing took place on 25 August 2025. Notice of hearing was issued to the Applicant in advance at the address provided by the Applicant on the Form. On 5 September 2025, the Court received the returned mail indicating that there was no such person at the stated address. Attempts were also made to contact and remind the Applicant of the hearing by phone (at the number provided by the Applicant on the Information Sheet and on Form No. 8) on 21 and 22 August 2025 but in vain. The Applicant did not attend the hearing. As notice was properly given to the Applicant at the address provided by the Applicant, and attempts were also made to remind the Applicant of the hearing at the telephone number provided by the Applicant, 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[1] is included below for reference.

Discussion

7.The Board’s Decision was issued on 24 January 2020. The Form was however only filed on 7 December 2020. The Leave Application was accordingly filed significantly out of time for about 7 months.

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, there was a substantial delay of about 7 months. There is no explanation, let alone valid explanation, for the substantial delay.  

11.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.

12.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 or procedural unfairness or irrationality in the decision of the Board. (See Nupur Mst v Director of Immigration [2018] HKCA 524, at §14)

13.The Applicant did not provide any grounds in support of the Leave Application in the Form. In the supporting Affirmation, the Applicant simply said he has genuine problem in his country and cannot go back. He further attached the Director’s Decision to the supporting Affirmation.

14.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. It should be noted that at the hearing before the Board, the Applicant refused to answer questions from the Board (§§46-51 of the Board’s Decision). The Board was accordingly entitled to reject the claim based on the documents provided by the Applicant (§§52-65 of the Board’s Decision). 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.

15.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

16.As the Form was filed significantly out of time and without any valid explanation for the delay, and the challenge to the Board’s Decision is not reasonably arguable, I refuse to grant an extension of time even if the Applicant makes such application. In the premises, I make an order that the Form be amended as described above and the Leave Application be dismissed.

Dated the 29^th day of September 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