Shah Faisal v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 62/2022

[2026] HKCFI 1217

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 62 of 2022

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) Sabrina Ho:

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

Observations for the Applicant:

Introduction

1.By a Form 86 filed on 17 January 2022 (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 13 May 2021 (the “Board’s Decision”).

2.In the Affirmation in support of the Leave Application (the “Affirmation”), the Applicant exhibited a copy of the Board’s Decision.

3.The Applicant requested an oral hearing for the Leave Application.  The hearing took place on 28 January 2026 (the “Hearing”) but the Applicant was absent.  Notice of Hearing was issued to the Applicant in advance at the Applicant’s address provided by the Immigration Department on 15 December 2025. The said Notice has not been returned as undelivered.

4.On 21 January 2026 and 27 January 2026, attempts were made to contact the Applicant by phone at the Applicant’s number provided by the Immigration Department. The Applicant did not pick up the call on 21 January 2026. On 27 January 2026, the Applicant answered the call and was informed that the Hearing would be held on 28 January 2026. I take the view that sufficient notice had been given to the Applicant in respect of the Hearing.  I will proceed with the Hearing in the absence of the Applicant.

Background

5.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.

Leave Application out of time

6.The Board’s Decision was issued on 13 May 2021.  However, the Form was only filed on 17 January 2022, over 6 months later and beyond the time prescribed for filing an application for leave for judicial review of the Board’s Decision, which is 3 months from the date of the Board’s Decision: see Order 53 Rule 4 RHC (Cap 4A).

7.No application has been made by the Applicant for extension of time for him to bring the Leave Application.  No explanation has been provided by the Applicant for the delay, whether in the Form or the Affirmation.

8.In considering whether time should be extended for an application for leave for judicial review, the Court will consider, amongst other things, the following:

a.   The length of the delay;

b.   The explanation of the delay;

c.   The merits of the substantive application;

d.   The prejudice to the applicant if time is not extended, and the prejudice to the respondent and to public administration if a challenge is allowed to proceed out of time; and

e.   The question of general public importance.

See: AW Director of Immigration and William Lam CACV 63/2015, 3 November 2015 at para 27

9.As I have pointed out above, there was no application for extension of time and no explanation for the delay.  Further, the Leave Application has no merits, for reasons which I will explain below.  Hence, even if there had been any application by the Applicant for extension of time to apply for leave for the judicial review, I would have rejected it.

Leave Application unmeritorious

10.The Applicant has not identified any ground in support of the Leave Application, whether in the Form or the Affirmation.

11.The relevant legal principles are well established.  The Court’s role 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 scrutinising 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 para 14.  There must be a reasonably arguable case with a realistic prospect of success before leave for judicial review will be granted: see Peter Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676. 

12.Having considered all the relevant materials before me, I do not consider the Applicant’s intended challenge against the Board’s Decision to be reasonably arguable with any realistic prospect of success.

13.I have reviewed the Board’s Decision in detail.  The Board had fully considered the Applicant’s evidence and his grounds for challenging the Director’s decision in refusing his claim for non-refoulment protection.  On the facts, the Board found that the Applicant has failed to show that he will face the proscribed harm, or the risk of such harm: see the Board’s Decision paras 69, 84-85, 88, 92-93, 97-100.  In addition, the Board considered that the COI shows that reasonable state protection would be available to the Applicant if he returns to Pakistan and that there are internal relocation options available to the Applicant: see the Board’s Decision paras. 70-83.  On the above bases, the Board found that the Applicant would not face any Persecution Risk, BOR 2 Risk, BOR 3 Risk or Torture Risk[2] if he returns to Pakistan and rejected the Applicant’s appeal: see the Board’s Decision paras 44-105.  I do not consider there to be any error of law, procedural unfairness or irrationality in the Board’s Decision.

14.Leave application of this sort is meant to be a filtering process and this Court is not expected to give elaborated reasons for its decision: see Re Zunariyah [2018] HKCA 14 at para 23.  I have considered all the relevant materials in reaching the present decision.

Conclusion

15.For the reasons stated above, I will dismiss the Leave Application.

Dated the 19^th day of March 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