Khan Azhar v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 181/2021

[2025] HKCFI 5620

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 181 of 2021

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 oral submissions by the Applicant in open court;

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 only 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 19 February 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 2 June 2020 (the “Board’s Decision”).

2.In the Form, the Applicant named both the Board and the Director of Immigration (the “Director”) as the proposed respondents. The Applicant further named the Board as the proposed interested party. As it is trite that the Board should be the proposed respondent and 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 20 October 2025 and the Applicant attended in person. At the hearing, the Applicant requested more time to stay in Hong Kong. He said he is a wanted person in Pakistan, and he wanted to wait until a decision is issued in Pakistan regarding his pending case. The Applicant however did not explain the relevance of these to the Leave Application.

4.I also pointed out to the Applicant that the Leave Application was filed out of time, and asked whether he had any explanation for the delay. The Applicant said he had no explanation.

5.Apart from the above, the Applicant had nothing to say in respect of the Leave Application.

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 is included below[1] for reference.

Discussion

7.The Board’s Decision was issued on 2 June 2020. The Form was however only filed on 19 February 2021. The Leave Application was accordingly filed out of time for more than 5 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. At the hearing on 20 October 2025, the Applicant indicated that he could not explain the delay.

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, the delay was substantial, and there is no explanation for the delay. 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.

11.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)

12.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 wished to apply for judicial review against both the Board’s Decision and the decision of the Director dated 20 May 2016.

13.The Director’s said decision had already been superseded by 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 dismissed.

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 was entitled to reject the Applicant’s claims based on the evidence and the reasons provided (in particular see §§60-66 of the Board’s Decision). It is also pertinent to note that the Applicant had only given limited evidence before the Board at the hearing on 29 June 2017, before finally deciding that he no longer wished to answer any further questions from the Board (§§61-63 of the Board’s Decision). As a result, the Board was not able to obtain explanation from the Applicant on some of its concerns relating to the Applicant’s claim. I do not see any errors committed by the Board in the 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.

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 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 that the Form be amended as described above and the Leave Application be dismissed.

Dated the 20^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