Waqas Haider v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1109/2025

[2025] HKCFI 5331

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1109 of 2025

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 absent 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 dated 30 September 2024 of the Torture Claims Appeal Board (“the Board’s Decision”). 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 30 December 2024. His application was filed on 13 May 2025, which is late for more than four and a half months. This issue will be dealt with below.

2.The applicant did not ask for a hearing.

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. He is an illegal immigrant for the reason that he sneaked into Hong Kong by boat on 26 October 2023. He was arrested. He lodged a non-refoulement claim on the basis that, if refouled, he will be harmed or killed by his neighbor, Sadiq, who intended to take over his land. He refused. Sadiq had sent people to kidnap him and threatened him with death.

5.Details of the applicant’s story can be found in the Board’s Decision. See hyperlink https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2025/HCAL001109_2025_files/the_Board's_Decision.pdf.

The Director’s Decision

6.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”).

7.The Director, by Notice of Decision dated 5 April 2024, (“the Director’s Decision”), refused the applicant’s claim for the reason that it was unsubstantiated.

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 15 July 2024, the Board conducted an oral hearing. He had given oral evidence and answered the Board’s questions.

9.Having considered the evidence and materials, the Board made the findings below.

(1)  His oral accounts of events are in many aspects different from his written version.[25]

(2)  His evidence was wholly unreliable. [44] & [63]

(3)  There was no evidence that the state was involved or would tolerate any unlawful activities. [48]-[49] & [66]

(4)  Internal relocation is viable. [55]

(5)  There was no evidence that the applicant will face any genuine risk of harm if he returns to Pakistan. [74]-[75]

10.For the reasons above, the Board dismissed the applicant’s appeal and affirmed the Director’s Decision.

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

11.The applicant has filed Form 86 dated 13 May 2025 for leave to apply for judicial review of the Board’s Decision.

12.In support of his application, the applicant has, insofar as the Board is concerned, raised the reasons below to challenge the Board’s Decision.

(1)  Its decisions are wrong.

(2)  It has not considered his right to life.

(3)  It has placed too much reliance on the country of origin information without considering his personal background and experience.

(4)  It required him to respond to questions that he was not in a position to offer response.

(5)  It should have allowed his appeal.

DISCUSSION

13.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.

14.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

15.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and 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.”

16.The grounds under paragraph 12 are his bare assertions without any evidence in support. They are not valid to challenge the Board’s findings.[2]

17.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

18.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 19^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