Khan Sakhi Asghar Ullah v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 253/2021

[2026] HKCFI 4925

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 253 of 2021

BETWEEN

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 5 January 2017 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 5 April 2017. His application was filed on 1 March 2021, which is late for more than 3 years and 10 months. This issue will be dealt with below.

2.The applicant asked for a hearing. However, he was absent at the hearing on 10 August 2026. I shall deal with his application on the papers.

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. He lodged a non-refoulement claim on the basis that, if refouled, he will be harmed or killed by family members of his wife because they objected to their marriage.

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/2021/HCAL000253_2021_files/the_Board's_Decision.pdf

The Director’s Decisions

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 torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

c.  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.By Notices of Decision respectively dated 6 January 2014 on Torture risk and 1 August 2016 on BOR3 risk and Persecution risk (“the Director’s Decisions”), the Director refused the applicant’s claim on all applicable risks because it was unsubstantiated.

The Board’s Decision

8.The applicant appealed the Director’s Decisions to the Board. He was late in filing his notice of appeal with the Board. According to the Board’s Decision, he was late for more than 7 weeks. [2]

9.The Board considered the applicant’s late filing of the notice of appeal without a hearing.

10.The Board saw no justification to exercise discretion to grant an extension of time for the applicant to file the appeal.

11.If the Board stopped there, the applicant will have a reasonable chance of success in his application for leave to apply for judicial review of the Board’s Decision because the Board had not considered the merits of the applicant’s case at that stage.

12.However, the Board went further to consider the merits of the case, relying on the decision of the Court of Appeal in AW v Director of Immigration and William Lam CACV 63/2015.

13.The Board considered the alleged facts of the case and held that the facts of the case did not satisfy the legal requirements of the applicable risks, and internal relocation is viable if he returns to his country.

14.For the above reasons, the Board refused to grant an extension of time for the applicant to file the notice of appeal, effectively dismissing his appeal.

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

15.The applicant filed Form 86 dated 1 March 2021 for leave to apply for judicial review of the Board’s Decision.

16.The applicant attached a statement of grounds to challenge the Board’s Decision to Form 86. Insofar as the Board is concerned, the applicant submitted that the Board was wrong in its assessment of his case, without considering his right to life.

DISCUSSION

17.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, inter alia, the prospect of success of the intended application. I shall consider the merits of the applicant’s case.

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

19.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.”

20.The Board had considered the merits of the applicant’s case. The reasons under paragraph 18 are his bare assertions without any evidence in support.

21.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.

22.The delay in this application is serious. The applicant has given no reason for his delay.

DISPOSITION

23.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 2^nd day of September 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