Naeem Muhammad v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office

HCAL 59/2021

[2025] HKCFI 5442

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 59 of 2021

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:- 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 15 January 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 8 July 2020 (the “Board’s Decision”).

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 on the court’s own motion.

3.The Applicant requested an oral hearing for the Leave Application.  The hearing took place on 13 October 2025 and the Applicant attended in person.  At the hearing, apart from pointing out that he was detained from 6 August 2020 to 11 January 2021, and that was why he was late in filing the Leave Application, the Applicant indicated that he had nothing to say in respect of the Leave Application.

Background

4.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

5.The Board’s Decision was issued on 8 July 2020.  The Form was however only filed on 15 January 2021.  The Leave Application was accordingly filed out of time for about 3 months.

6.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.  At the hearing on 13 October 2025, the Applicant explained the delay by reason of him being detained at the relevant time. 

7.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.

8.In the present case, there was delay of about 3 months.  Although the Applicant claimed that he was detained from 6 August 2020 to 11 January 2021, the Board’s Decision was issued on 8 July 2020 and so the Applicant could have arranged for the filing of the Leave Application before he was detained.  There is no explanation why he could not do so.  In the premises, I do not consider that there is valid reason justifying the delay.  Having said that, 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.

9.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)

10.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 was not satisfied with the Board’s Decision, and that his life was still in danger in Pakistan.     

11.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 before the Board, the Applicant elected not to give oral evidence or address the Board’s queries (§§62-68, 94-104 of the Board’s Decision).  The Board was accordingly only left with the documentary evidence without any supplementary oral evidence from the Applicant to address the Board’s concerns.  The Board was entitled to come to the conclusions it did and reject the Applicant’s claims under such circumstances (§§107-119 of the Board’s Decision).  I see no errors in the Board’s 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. 

12.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

13.As the Form was filed 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 the Form be amended as described above and the Leave Application be dismissed.

Dated the 14^th day of November 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