Ali Haider v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
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HCAL 727/2022 [2026] HKCFI 5032 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 727 of 2022 BETWEEN
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) Bonnie Cheng:
Observations for the Applicant: Introduction 1.By Form 86 dated 5 August 2022 (“Form 86”), the Applicant seeks leave to apply for judicial review (“Leave Application”) against the Decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“Board”) dated 30 June 2022 (“Board’s Decision”), which affirmed the Decision of the Director of Immigration (“Director”) dated 21 July 2021 (“Director’s Decision”). 2.The Form 86 incorrectly named the intended respondent and failed to name the putative interested party. I therefore amend the Form 86 on my own motion to name the Board as putative respondent and the Director as putative interested party. 3.An oral hearing, which was requested by the Applicant, took place before me on 3 March 2026. The Applicant was however absent from the hearing. Background 4.The Applicant is from Pakistan. I have considered his background and the basis of his application for non-refoulement in the Director’s Decision. I will not repeat them here. I also refer to the Board’s Decision at this hyperlink.[1] Unless otherwise specified, I adopt the abbreviations in the Board’s Decision. 5.In short, the Applicant claimed to be in fear of being harmed and killed by people of Ahl-E-Sunnat. Discussion 6.Leave application is meant to be a filtering process and the court is not expected to give elaborate reasons for its decision: Re Zunariyah [2018] HKCA 14 at §23. I therefore set out below brief reasons for my decision, which I have reached upon considering all the materials before me. 7.The court’s role in judicial review is not to provide a further avenue of appeal. The primary decision makers are the Director and the Board. While the court adopts in non-refoulement cases an enhanced standard in scrutinising the decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board. 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: Nupur Mst v Director of Immigration [2018] HKCA 524 at §14(1). There must be a reasonably arguable case, namely one which enjoys a realistic prospect of success, before leave for judicial review will be granted: Peter Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676 at §§14-17. 8.In a proper Form 86, an applicant is required to state the grounds of judicial review clearly and succinctly: Ho Loy v Director of Environmental Protection (HCAL 21/2015, 22 December 2016) at §142. He or she is also under a duty to make full and frank disclosure of material facts: Kan Hung Cheung v The Director of Immigration [2008] HKC 323 at §§14-17. 9.In his affirmation, the Applicant stated various grounds to the effect that the Director and the Board had reached their decisions wrongly in assessing his non-refoulment claim; that their decisions were not reasonable and fair; that the Board failed to give him sufficient time and chance to arrange relevant evidence; and that the Director failed to take sufficient account of the problems in his home country. While these grounds should have been stated in the Form 86, I have nevertheless considered them. 10.The Board’s Decision was one that refused to allow the Applicant’s late filing of his Notice of Appeal. The deadline for filing was 6 August 2021, but the Applicant was late for two months and 16 days by filing his Notice of Appeal on 21 October 2021. 11.Under section 37ZT(2) of the Immigration Ordinance (Cap. 115) as amended on 1 August 2021, the Board had to decide, as a preliminary decision without a hearing, whether to allow the late filing of the Applicant’s notice of appeal to the Board. In doing so, the Board may only take account of the statement of reasons stated in the application for late filing of the notice of appeal and the evidence relied on in support of such reasons. 12.Here, the Board had considered the Applicant’s explanation for the delay, which was that he was remanded in prison and had no one outside in Hong Kong to help. He claimed that he had reached out to prison welfare for help but “did not get it” and “was new to such thing that how to appeal”. According to him, he was in Pik Uk prison at the time of filing his Notice of Appeal. 13.The Board took the view that the Applicant’s explanation could not be sustained as he could send his appeal in October 2021 while he was still imprisoned, and he did not submit any evidence to satisfy the Board that he had exercised all due diligence to file the Notice of Appeal within time but failed to do so because of circumstances beyond his control. The Board concluded that it had no basis to exercise any statutory discretion to extend time. 14.The Board was entitled to come to this conclusion. I do not find any error of law, procedural unfairness or irrationality in its decision. Nor has the Applicant been able to demonstrate any in his proposed grounds of judicial review. Conclusion 15.For the above reasons, I make an order that that the Form 86 be amended as described above and the Leave Application be dismissed. Dated the 7th 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
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Cases cited in this judgment