Barua Shibli v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1421/2026

[2026] HKCFI 5357

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1421 of 2026

BETWEEN

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following;

	consideration of the documents only;            or
	consideration of the documents and oral submissions by the Applicant in open court;

Order by Deputy High Court Judge Andrew Li:

1.  Extension of time to file the Form 86 be refused;

2.  The Applicant’s Form 86 be amended to name only the Torture Claims Appeal Board as the putative respondent and only the Director of Immigration as the putative interested party; and

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

Observations for the Applicant:

INTRODUCTION

1.By a Form 86 filed on 11 August 2026 (“the Form 86”), the applicant applied for leave to apply for judicial review of a decision by the Torture Claims Appeal Board (“the Board”) dated 19 December 2025 (“the Board’s Decision”), which affirmed a decision by the Director of Immigration (“the Director”) dated 10 November 2025 in refusing the applicant’s non‑refoulement protection claim. He named the Director and the Board as both the putative respondents and interested parties.

2.I amended the Form 86 on my own motion to name only the Board as the putative respondent and only the Director as the putative interested party.

3.The applicant requested for a hearing and he attended the same (while he was being detained by the Immigration Department). When asked by the court if he has anything to say besides the matters stated in his application, the applicant stated that he now wants to return to his country as soon as possible as his wife is being hospitalized. When asked if he wished to withdraw his application, he answered in the affirmative. However, he had failed to produce any formal written notice to withdraw the present application or the non-refoulement claim. Hence, the court decided to proceed with hearing his application for leave to apply for judicial review.

4.I noticed that the Board’s Decision was dated 19 December 2025 while the Form 86 was filed almost 8 months later on 11 August 2026 only. Under Order 53, rule 4(1) of the Rules of the High Court (Cap 4A), an application for leave to apply for judicial review should be made promptly and in any event within three months from the date when grounds for the application first arose. There was no explanation for the delay in filing the application nor was there any application to ask for an extension of time. In the circumstances, the court would refuse any extension of time to file the leave application.

BACKGROUND

5.The applicant is a national of Bangladesh. He seeks non-refoulement protection on the basis that if he is refouled, he would be harmed by his former business partner.

6.His appeal to the Board was rejected on the sole ground that he had failed to file the Notice of Appeal (“NOA”) with the Board regarding his appeal against the Director’s decision within the specified 14-day period. Further, the applicant failed to provide any documentary evidence to prove that his failure to file the NOA within the specified period was due to circumstances beyond his control. The Board’s Decision can be accessed through a hyperlink[1]. I shall not repeat the same here.

DISCUSSION

7.In a judicial review, this court does not provide a further avenue of appeal. Though in non-refoulement case an enhanced standard in scrutinizing the decision of the Board is required given the seriousness of the issue at hand, this court should not usurp the role of the Board, which together with the Director are the primary decision-makers. This 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, [14(1)]). There must be a reasonably arguable claim with a realistic prospect of success before leave for judicial review will be granted (Peter Po Fun Chan v Winnie Cheung & Anor (2007) 10 HKCFAR 676).

8.In the Form 86 and his affirmation filed in support of the application, the applicant set out the grounds for his application for leave for judicial review as well as the purported reasons for the delay in filing the NOA in a 20-page handwritten document.

9.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.[2] In the present case, the applicant was late for 15 days when he filed the NOA. The deadline for filing the NOA was on 24 November 2025, but the applicant only filed the NOA on 9 December 2025.

10.Pursuant to s.37ZT of the Immigration Ordinance (Cap. 115), the Board determined, as a preliminary issue, whether to allow the applicant’s late filing of the NOA. The Board refused the late filing of the appeal against the Director’s decision for the reasons stated in the Board’s Decision. They are findings of fact, which the court in a judicial review application will not interfere with, subject to there being any public law errors.

11.Despite rigorous examination and anxious scrutiny, I could not find any errors of law, procedural unfairness or irrationality in the Board’s Decision. The applicant’s intended challenge to the Board’s Decision is not reasonably arguable and has no realistic prospect of success.

12.In any event, given the applicant’s latest wish that he wants to be refouled to his home country as soon as possible, the dismissal of his claim perhaps will facilitate his repatriation at an earlier date.

CONCLUSION

13.For the above reasons, I am not satisfied that this court should intervene by way of judicial review. I therefore dismiss the application.

Dated the 29^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