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

HCAL 1756/2020

[2026] HKCFI 261

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1756 of 2020

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of the documents only;            or
	consideration of the documents and oral submissions by the Applicant in open court

Order by Deputy High Court Judge (Non-refoulement Claims) Teresa Wu:

1.  Form 86 be amended, naming only the Torture Claims Appeal Board / Non‑refoulement Claims Petition Office as the Putative Respondent and adding the Director of Immigration as the Putative Interested Party.

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

Observations for the Applicant:

Introduction

1.By Form 86 filed on 1 September 2020, the Applicant seeks leave to apply for judicial review (“the Leave Application”) of the decision of the Torture Claims Appeal Board / Non‑refoulement Claims Petition Office (“the Board”) dated 1 November 2019 (“the Board’s Decision”). By that decision, the Board refused the Applicant’s application for late filing of the Notice of Appeal of the decision of the Director of Immigration dated 14 January 2019 (“the Director’s Decision”), which had rejected his non‑refoulement claim on all applicable grounds under the Unified Screening Mechanism (USM).

2.Unless otherwise specified, the abbreviations and descriptions used in the Board’s Decision, the hyperlink to which is included below[1], are adopted herein.

Background

3.The Leave Application was lodged out of time under Order 53, rule 4 of the Rules of the High Court.

4.In determining whether leave should be granted to file an application for leave to apply for judicial review out of time, the Court of Appeal held that the relevant considerations include: (i) the length of the delay; (ii) the explanation for the delay; (iii) the merits of the substantive application; (iv) any prejudice that may be occasioned to the applicant if leave is refused as against the prejudice to the respondent and the public administration if leave is granted; and (v) whether the application raises questions of general public importance which are likely to require resolution by the Court in any event (see AW v Director of Immigration & Another [2016] 2 HKC 393 (CA) at §§23‑36, Thomas Lai [2014] 6 HKC 1 at §§43-45 (as also cited in AW, supra), and H v Director of Immigration (2020) 23 HKCFAR 248 at §§17-22, 36-44 (citing inter alia both AW and Thomas Lai, supra); see also Re Hariatiningsih [2021] HKCFI 1194 at §§12-13, 16-19 citing the aforesaid, upheld in [2022] HKCA 1321).

5.First, the delay in question is substantial. The Applicant has neither applied for an extension of time nor provided any explanation for the delay in his supporting affirmation to the Leave Application.

6.Regarding the merits, I am not persuaded that the Applicant’s intended application for judicial review of the Board’s Decision is reasonably arguable with any realistic prospects of success (see Peter Po Fun Chan v Winnie Cheung & Another (2007) 10 HKCFAR 676).

7.As observed by the Board, the Applicant had the benefit of legal advice and assistance provided by the Duty Lawyer Service. It was apparent that his legal representative must have discussed the contents of the Director’s Decision with him and advised on the future steps that should be taken. In such circumstances, the Applicant was well aware of the time limit applicable to the screening process if he was aggrieved by the Director’s Decision. The Applicant had, however, failed altogether to provide any statement of reasons for the late filing.

8.Judicial review does not operate as a further avenue of appeal (see Re Zunariyah [2018] HKCA 14; Re Qadir Sher [2018] HKCA 160; Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Lakhwinder Singh [2018] HKCA 246; and Re Masoom Parvez [2018] HKCA 163).  In seeking to challenge the Board’s Decision, the Applicant ought to have clearly and precisely identified the grounds relied upon in the Form 86 and in his supporting affirmation. As matters stand, both documents are virtually devoid of substance, containing no meaningful detail whatsoever. The Applicant has failed to identify any valid or effective public law grounds (see Ho Loy & Another v Director of Environmental Protection, HCAL 21/2015 (unreported, 22 December 2016) at §142).     

9.In view of the seriousness of the issues involved, I have reminded myself of the enhanced standard required by law (see Nupur Mst v Director of Immigration [2018] HKCA 524 at §14). Under section 37ZT(2) and (3) of the Ordinance (in force in 2019), the Board ought to have considered the merits of the Applicant’s intended appeal of the Director’s Decision (see Re Qasim Ali [2019] HKCA 430 at §§25-26, citing Re Khan Kamal Ahmed [2019] HKCA 377 at §§16-20).

10.In scrutinizing the Board’s Decision, I note that although the Board did not make it explicitly clear that it had taken into account the merits of the intended appeal notwithstanding the procedural breaches or the absence of any explanation therefor, the Board, in referring to the requirement of special circumstances and whether it would be unjust not to allow the late failing, was plainly aware of the Applicant’s claim based on his fear that he would be harmed or killed by his paternal uncle, Mazhar. It was after evaluating all the circumstances of the case, including the facts asserted by the Applicant, that the Board concluded there was nothing in them which could amount to special circumstances.

11.The Board must be correct in light of the contents of the Notice of Appeal intended to be filed with it, and that the intended appeal could not possibly have succeeded before the Board (see Re Hariatiningsih [2021] HKCFI 1194 at §12). There was limited merit in the Applicant merely asserting in the Notice of Appeal that he did not accept the Director’s Decision and that he would not return to his country owing to his fear of Mazhar.

12.Finally, I discern no prejudice in refusing to allow the Applicant to proceed with an application that is, in any event, wholly unmeritorious. Conversely, allowing him to do so would disrupt and undermine the proper administration and cause prejudice to the Putative Respondent. For completeness, I also do not accept (if indeed this is the Applicant’s position) that the matter raises any question of general public importance requiring determination by the Court.

Conclusion

13.In view of the foregoing, I see no good reason to extend time for the Applicant to apply for leave to seek judicial review, and I accordingly dismiss the Leave Application.

Dated the 16^th day of January 2026.

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