Hussain Safder v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 127/2023

[2026] HKCFI 5295

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 127 of 2023

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 oral submissions by the Applicant in open court;

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 31 January 2023 (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 dated 21 July 2022 (the “Board”, the “Board’s Decision”).

2.In the Affirmation in support of the Leave Application (the “Affirmation”), the Applicant raised various grounds in support of his Leave Application, see below.

3.The Applicant requested an oral hearing for the Leave Application, which took place on 17 June 2026 (the “Hearing”). At the Hearing, the Applicant said that he does not have anything to add.

Background

4.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

5.The Board’s Decision was issued on 21 July 2022. However, the Form was only filed on 31 January 2023, more than 3 months later, beyond the time prescribed for filing an application for leave for judicial review of the Board’s Decision: see Order 53 Rule 4 RHC (Cap 4A).

6.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.

7.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

8.As I have pointed out above, there was in fact 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

9.In the Affirmation in support of the Leave Application, the Applicant raised some grounds in support of the Leave Application. I will summarise them below:

a.  The Applicant alleges that the Director did not consider the Applicant’s claim;

b.  The Applicant alleges that the Director had only one job and that is to dismiss the Applicant’s claim;

c.  Some documents submitted by the Applicant were in his mother language and the Director did not accept them;

d.  The Applicant requested time to be granted for translation but the officer did not grant him the time.

10.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; Re Limbu Birkhaman [2019] HKCA 50 at para 11. 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.

11.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.

12.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-refoulement protection. The Board took the view that the Applicant has failed to establish any real chance or risk that he would suffer the prescribed harm: see the Board’s Decision paras 44-53. The Board therefore 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 54-72. I do not consider there to be any error of law, procedural unfairness or irrationality in the Board’s Decision.

13.As to the grounds set out in paragraph 9 above:

(1)  Paragraphs 9 (a) and 9 (b) are serious allegations against the Director without any evidence in support and I will reject them. Indeed, the Director’s Decision dated 27 February 2018 has been confirmed by the Board’s Decision;

(2)  As for Paragraphs 9 (c) and 9 (d), the Applicant has failed to identify the documents which he had submitted to the Director or their relevance. This complaint is unparticularised and I will also reject it.

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 18^th 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