Irfan v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
|
HCAL 2022/2020 [2026] HKCFI 3094 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2022 of 2020
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 Levy:
Observations for the Applicant: Introduction 1.By a “Notice of application for leave to apply for judicial review” in the prescribed Form 86 filed on 7 October 2020, the applicant applied for leave to apply for judicial review (“Leave Application”). The intended judicial review was against the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) dated 30 June 2020 (“Board’s Decision”) dismissing the applicant's appeal against the decision of the Director of Immigration (“Director”) respectively dated 16 July 2018 rejecting the applicant's non-refoulement claim on all applicable grounds[1]. The Board’s Decision can be viewed at the following hyperlink: - 2.In the Form 86, the applicant named the Board and the Director as the proposed respondents and the interested parties. As the Board should have been the proper putative respondent and the Director the putative interested party, the Form 86 shall be amended on the court’s own motion. 3.The basis of the applicant’s claim was that, if refouled to Pakistan, he would be harmed or killed by the brothers of the applicant’s lover whom was killed by one of the brothers. The Board’s reasoning and findings were set out in detail in the Board’s Decision and it is not necessary for me to repeat them. Unless otherwise specified, I shall also adopt the Board’s abbreviations and descriptions stated in the Board’s Decision. 4.Pursuant to the applicant’s request for a hearing of the Leave Application, this court scheduled a hearing on 28 April 2026. A notice of hearing with a reminder[2] of the consequence of absence dated 10 April 2026 was sent to the applicant’s last known address by ordinary post. The applicant did not turn up at the hearing. Before the hearing, several phone calls were made to the applicant’s given telephone number but to no avail. The information before this court shows that the said notice of hearing has not been returned undelivered through the post. 5.In the circumstances, this court will dispose of the Leave Application according to the materials already placed before the court. Discussion 6.A leave application operates as a “filtering” process. Hence, there is no requirement or expectation to give elaborate reasons for my decision[3]. It is therefore sufficient to state my observations after considering the Board’s Decision and the applicant’s materials adduced. 7.In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly[4], and further to make full and frank disclosure of all material facts to be verified by an affidavit. No such grounds have been provided by the applicant in either his Form 86 or the supporting affirmation. 8.As the Courts have repeatedly stated, a finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality.[5] In the present case, the Board found that the applicant had given an account which was not substantiated and only contained bare assertions. It also found that the past ill-treatment did not meet the requisite level of severity. Thus, the Board concluded there was no real risk of harm if the applicant were refouled. The Board also found that internal relocation would be reasonably available. These are findings of fact, which the court in a judicial review will not interfere with, subject to there being any public law errors. 9.Bearing in mind the enhanced standard that should be adopted in scrutinizing the Board’s Decision, this court is satisfied that the Board correctly applied the law relating to all the grounds and observed a high standard of fairness. The applicant advanced no grounds at all in support of the Leave Application. Hence, the applicant has not shown any errors of law or procedural unfairness or irrationality in the Board’s Decision. The applicant’s intended challenge to the Board’s Decision is not reasonably arguable with realistic prospects of success such that would enable this court to grant leave[6]. Whether to grant extension of time 10.Further, there is a delay of about 1 week in the filing of the Leave Application. In spite of the insignificant delay, the applicant shall still be required to provide good reason for the delay. The applicant provided no explanation at all for the delay. In the absence of reason for the delay, and importantly, the lack of merits, I refuse to exercise my discretion to grant extension of time. Orders 11.The Form 86 be amended on the court’s own motion. 12.There shall be no extension of time to the applicant to file the Form 86 out of time. 13.The applicant’s application for leave to apply for judicial review be dismissed. Dated the 10th day of June 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
[6] Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676 | ||||||||||||||||||||||||||||||||||||||||
Cases cited in this judgment