Irfan Muhammad v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 469/2021

[2026] HKCFI 5694

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 469 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 10 January 2020 of the Torture Claims Appeal Board (“the Board’s 2^nd 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 10 April 2020. His application was filed on 7 April 2021, which is late for more than 11 months. This issue will be dealt with below.

2.The applicant did not ask for a hearing.

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 an illegal immigrant. He lodged a non-refoulement claim on the basis that, if refouled, he will be harmed or killed by his enemies.

5.Details of the applicant’s story can be found in the Decision of the Board dated 31 October 2016 (“the Board’s 1^st Decision”), which dealt with his appeal against the Director’s Decision dated 26 November 2015 (“the Director’s 1^st Decision”) refusing his non-refoulement claim on the following risks because they were unsubstantiated:

(1)  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

(2)  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

(3)  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”).

see hyperlink.

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2021/HCAL000469_2021_files/the_Board's_Decision.pdf

6.The applicant did not appeal against the Board’s 1^st Decision, which has become final.

7.The Director further considered his risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”).

8.By Notice of Decision dated 9 March 2017 (“the Director’s 2^nd Decision”), the Director reject his non-refoulement claim on the BOR 2 risk because it was unsubstantiated.

9.He appealed to the Board.

10.By the Board’s 2^nd Decision, the Board dismissed his appeal.

The Board’s 2^nd Decision

11.The Board did not hold an oral hearing for the applicant, having considered that it had the discretion to do so for the reasons stated in paragraph 47 of the Board’s 2^nd Decision, viz: there had been a full hearing for the other applicable risks by the Board; that there was no question from the Board to the applicant for clarification or explanation.

12.Having considered the evidence, the Board made the findings below.

(1)  High standard of fairness has been adopted in each stage of his claim.

(2)  Internal relocation is viable if he returns to his country.

(3)  His humanitarian rights have been adequately protected.

(4)  The applicant has not put forward any grounds of a change of the circumstances since his appeal was heard.

13.The Board further concluded that the applicant failed to show that he has any real risk of any of the applicable risks if he returns to his country.

14.For the above reasons, the Board dismissed his appeal against the Director’s 2^nd Decision.

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

15.The applicant filed Form 86 dated 7 April 2021 for leave to apply for judicial review of the Board’s 2^nd Decision.

16.A duty lawyer has submitted grounds in writing in support of the applicant’s application as follows.

(1)  Procedural irregularity: the Board did not hold an oral hearing and rejected the applicant’s credibility, and it did not give weight to the First Investigation Report (“FIR”).

(2)  The Board rejected all the grounds raised by the applicant in his previous hearing before the Board, without giving him a chance to appear before to submit new materials relevant to the BOR 2 risk.

(3)  The integrity of the FIR was challenged and was given no weight by the Board without a hearing for the applicant to produce the original FIR and to challenge the translation of the FIR and the Facebook entry concerning country-of-origin (“COI”) of the sentencing of the Maliks.

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 previous Board had held a hearing for the applicant on the applicable risks other than the BOR 2 risk. The Board for the Board’s 2^nd Decision was entitled to take into consideration of the evidence and the findings of the previous Board. See The Court of Appeal in MD Nazir Ahmed Sarkar v Torture Claims Appeal Board/Non-refoulement Claims Petition Office and Director of Immigration [2021] HKCA 918, para. 37.

21.The Board’s 1^st Decision has become final. Section 23 of Schedule 1A (4) of the Ordinance provides, inter alia, that the Appeal Board’s decision is final, only subject to judicial review. See Re: Aioub Ali [2019] HKCA 1329. Hon Lam VP, Wong and S T Poon.

22.The Court of Appeal in Kulwinder Kaur v Director of Immigration and Torture Claims Appeal Board/Non-refoulement Claims Petition Office [2022] HKCA 48, Hon Chu, JA (as she then was), Barma JA and Au JA, held:

“59. … upon determining that there is no BOR 3 risk, there is no arguable ground for any BOR 2 risk: see AA v Sweden (2017) 64 EHRR 20 at [52] and [96]; RM v Gerard Paul Muttrie Esq (unrep., HCAL 166/2015, 3 March 2016) at [52].”

23.The Board has the discretion not to hold a hearing for the disposal of the applicant’s appeal under section 12 of Schedule 1A of the Immigration Ordinance, Cap. 115:

“The Appeal Board may determine an appeal without a hearing if, having regard to the material before it and the nature of the issues raised, the Board is satisfied that the appeal can be justly determined without a hearing.”

24.Since the facts of the applicant’s claim in respect of the applicant risks other than BOR 2 risk had been considered by the previous Board, there is nothing amiss that another Board adopted the evidence of the previous Board without an oral hearing.

25.For the above reasons, the grounds under paragraph 16 fall apart.

26.The applicant has not given any explanation for his delay, which is serious.

27.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.

DISPOSITION

28.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 14^th day of October 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