Case Detail

HCAL 356/2020

[2025] HKCFI 4204

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 356 OF 2020

____________

BETWEEN
	Anwar Muhammad Attique	Applicant
	and
	Torture Claims Appeal Board	Putative
		Respondent
	and
	Director of Immigration	Putative
		Interested Party

____________

Before:

Deputy High Court Judge Michael WONG in Chambers (Open to Public)

Date of Hearing:	3 September 2025
Date of Handing Down of Decision:	16 September 2025

______________

D E C I S I O N

______________

Background

1. By way of summons filed on 30 July 2025 (“the Summons”), the applicant applies for leave to appeal out of time against my order dated 15 July 2025.

2. Order 53, rule 3(4) of the Rules of the High Court, Cap 4A, stipulates that “Where an application for leave is refused by a judge …, the applicant may appeal against the judge’s order to the Court of Appeal within 14 days after such order”.

3. In Re Li Jing [2015] 2 HKLRD 933, it was held that the time for lodging an appeal against the refusal of granting leave to apply for judicial review started to run from the date of the making of the order, not from the date when the sealed order was issued, nor from the date when the sealed order was mailed, and no account should be taken of the fact that the applicant received the sealed order late (see also Re Gurung Min Bahadur [2018] HKCA 226).

4. As my order was made on 15 July 2025, the last day for the applicant to lodge an appeal was on 29 July 2025. The time for appealing against my order has therefore expired, and the applicant requires leave from this court to appeal out of time.

The applicable law

5. In considering whether to extend time for appealing a decision refusing leave to apply for judicial review, the court will take into account: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted (see Jagg Singh v Torture Claims Appeal Board and another[2020] HKCA 844).

6. However, the crucial consideration in such an application is whether the applicant can show that there is a reasonable prospect of success in the intended judicial review (see Re Gurung Min Bahadur, supra), and the court will not grant extension for a hopeless appeal to be pursued (see Re Adumekwe Rowland Ejike[2019] HKCA 702).

Discussion

7. In the applicant’s supporting affirmation dated 30 July 2025, the applicant alleged that he was not very well aware of the deadline for filing appeal application because he did not understand the court procedure.

8. However, at the hearing of the Summons on 3 September 2025, the applicant claimed that he received the court’s letter late and when he received the letter, it was already the last date for filing the appeal application. When I asked the applicant when he received the court’s letter, he said that it was on 14 July 2025. This is clearly impossible, as my order was made on 15 July 2025. The applicant then claimed that his friend told him to go to appeal and it was late because he had to appeal within 14 days. He also claimed that he did not remember the date of receipt of the court’s letter but it was the last date for filing the appeal application.

9. Thus, the applicant gave two versions of the reason for his delay in making the appeal. In his affirmation, he claimed that he did not understand the court procedure, whereas at the hearing, he claimed that his friend told him about the deadline but he received the court’s letter on the last date of the deadline.

10. Both versions do not appear to be credible to me. In any event, both versions are not good reasons for filing the appeal late. It is trite that ignorance of the law is no excuse and hence the applicant cannot delay the process by saying that he did not know the court procedure. The court’s letter was sent out on 15 July 2025, and it should be delivered to the applicant within 1 or 2 days in the normal course of event. The applicant did not provide any reason why the letter was delivered to him late at all. I am not prepared to accept his bare allegation in this regard.

11. Moreover, there is no merits of the intended appeal or the intended judicial review at all.

12. It is not necessary for me to repeat the details of the applicant’s case here as the same were set out in the Board’s decision dated 16 January 2020, which can be viewed in the hyperlink attached to the Form CALL-1 dated 15 July 2025.

13. The applicant failed to advance any ground for the intended appeal in the Summons or his supporting affirmation. At the hearing on 3 September 2025, the applicant even admitted that he was not saying my decision was wrong and he wanted to appeal because he wanted to stay in Hong Kong for 2 to 4 months more.

14. For this application to be successful, the applicant must demonstrate that this court had made errors of law or failed to take account of relevant matters already placed before this court or was otherwise plainly wrong (see Nupur Mst v Director of Immigration [2018] HKCA 524).

15. The applicant failed to demonstrate any of the above, and hence there is simply no valid ground for the intended appeal or the intended judicial review.

16. Furthermore, as discussed in the Form CALL-1, the applicant’s alleged dangerous situation was duly considered by the Board. The finding of facts was solely within the ambit of the Board. This court finds nothing wrong in the way the Board reached its conclusion based on the evidence available to the Board.

17. In the circumstances, there is no reasonable prospect of success in the intended judicial review and I am not prepared to grant any extension of time for the applicant to pursue such a hopeless appeal.

Conclusion

18. For reasons aforesaid, the Summons is dismissed.

(Michael WONG)
Deputy High Court Judge

The applicant appearing in person

HCAL 356/2020

[2025] HKCFI 2906

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 356 OF 2020

BETWEEN
	Anwar Muhammad Attique	Applicant
	and
	Torture Claims Appeal Board	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

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

Order by Deputy High Court Judge Michael WONG:

1.  On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board” and the name of the putative interested party be amended to “Director of Immigration”.
2.  The applicant’s application to withdraw the application for leave to apply for judicial review be refused.
3.  The applicant’s application for leave to apply for judicial review be dismissed.

Observations for the applicant:

The Leave Application

1. By way of Form 86 dated and filed on 10 March 2020, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board ("the Board") dated 16 January 2020 (“the Board's Decision”). The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000356_2020_files/the_Board's_Decision.pdf

2. The Board found the applicant failed to substantiate that he qualified for non-refoulement protection on any of the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board dismissed the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 19 December 2018.

Amendments

3. The applicant named both the Board and the Non-refoulement Claims Petition Office as the putative respondents and the putative interested parties in Form 86, when only the Board should be named as the putative respondent and only the Director should be named as the putative interested party.

4. The Non-refoulement Claims Petition Office should not be named as a party at all, as it is just an office providing administrative and secretariat support to the adjudicators of the Board.

5. Thus, on this court’s own motion, the name of the putative respondent is amended to “Torture Claims Appeal Board” and the name of the putative interested party is amended to “Director of Immigration”.

The applicant’s case

6. It is not necessary for this court to repeat the details of the applicant’s case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above.

7. In sum, the applicant claimed for non-refoulement protection because he feared that if returned to Pakistan, he would be killed by a man named Zafar Iqbal (“Zafar”) and his son named Asad, as the applicant’s cousin named Babar killed Zafar’s another son named Mudassar in a cricket match. The applicant did not kill Mudassar but was targeted because Babar lived with the applicant and disappeared.

Withdrawal of the Leave Application

8. The applicant requested for an oral hearing of the Leave Application, but before a hearing is fixed, the Director sent a letter dated 23 May 2025 to inform this court that the applicant had written a letter dated 16 May 2025 to withdraw his judicial review application.

9. As stated in the applicant’s said letter, the reason he gave for this withdrawal application was that he wanted to return to his home country as soon as possible, the issues in his home country had been resolved and he could return home.

10. There is no evidence to show that the applicant made the withdrawal application other than out of his own volition. With this withdrawal application, it is clear that the applicant no longer wishes to proceed with the Leave Application or any oral hearing for the Leave Application. It is therefore not necessary for this court to afford him any oral hearing for the Leave Application even though he had requested one before.

11. However, the Court of Appeal had held in Re Manik Md Mahamudun Nabi [2022] HKCA 471 that:-

“The applicant on his own motion applied to the Court to withdraw his application for leave to apply for judicial review. The Judge acceded to his application, whereupon there was nothing outstanding in the action. The Judge was correct to conclude the action by ordering a dismissal of the application instead of leaving the action at large.”

12. Thus, it is right for this court to deal with the Leave Application instead of leaving the action at large. The applicant’s application to withdraw the Leave Application is therefore refused and this court will proceed to consider the merits of the Leave Application.

Grounds for judicial review

13. The applicant is required to identify clearly the grounds for his intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).

14. The applicant did not provide any ground for his intended judicial review in Form 86, nor in his supporting affirmation dated 10 March 2020. The applicant merely stated in his affirmation that he did not agree with the Board’s Decision and his case was all true.

Discussion

15. The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision and intervene by way of judicial review only for errors of law, procedural unfairness or irrationality (see Nupur Mst v Director of Immigration[2018] HKCA 524).

16. Despite that the applicant did not advance any valid ground for the intended judicial review, this court will still scrutinize the Board’s Decision for any errors of law, procedural unfairness or irrationality.

17. In assessing the applicant’s appeal, the Board held an oral hearing on 20 December 2019. After due consideration of the evidence and the oral testimony of the applicant, the Board concluded that the applicant was not a witness of truth. He gave two significantly different accounts of how Mudassar was killed, but he claimed to have taken no part in the death of Mudassar in both versions of his story. The Board found that both versions of the applicant’s story were made up and there was no reason that he would be pursued by Zafar as if he were the killer. The Board concluded that the applicant did not face any real or substantial risk of any of the proscribed harms under the USM.

18. Although the Board did not consider availability of state protection and viability of internal relocation, as the applicant’s claims and the matters giving rise to his claims for non-refoulement protection were rejected in their entirety, it was not necessary for the Board to consider the availability of state protection.

19. As to internal relocation, it is a well-recognised principle that the decision-maker only needs to consider internal relocation if the applicant has established that he qualifies as a refugee pursuant to Article 1A(2) of the Refugee Convention (see Robinson v SSHD & Anor [1997] EWCA Civ 3090, dated 11.7.1997). In other words, internal relocation only arises if the applicant has established a real risk of persecution in his home area (see Gardi v SSHD [2002] 1 WLR 2755).

20. As it is the Board’s finding that the applicant had no real risk of any of the proscribed forms of harm, it is not necessary for the Board to consider internal relocation.

21. The assessment of evidence and risk of harm are primarily within the realm of the Board. This court finds no errors of the Board in reaching its decision based on all the evidence before it. In fact, in view of the applicant’s latest confirmation that his problems in his home country had been solved, there is absolutely no ground for him to make any non-refoulement claim and there is no prospect of success in the applicant’s intended application for judicial review at all.

22. Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM, the burden of proof and the standard of proof. The Board also correctly identified the issues and observed a very high standard of fairness. This court could detect no errors of law, procedural unfairness or irrationality in the Board’s Decision. The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision.

23. In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be a reasonably arguable claim which enjoyed realistic prospects of success. It is the view of this court that the intended judicial review has no realistic prospects of success at all, and hence leave must be refused.

Conclusion

24. For reasons aforesaid, the application for leave to withdraw the Leave Application is refused and the Leave Application is dismissed.

Dated the 15^thday of July 2025

(Irene LEE)
for Registrar, High Court

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

Notesfor the applicant: If leave has been granted, the applicant or his solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent/Handed to the applicant/the applicant’s solicitors on: 15 July 2025 Applicant’s ref. no: Nil		Sent/Handed to the putative respondent / the putative respondent’s solicitors / such putative interested parties as may be directed by the Court / the putative interested parties’ solicitors on: 15 July 2025 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative respondent’s ref. no.: USM 15100/18/12/457/P3023 Director of Immigration Putative interested party’s ref. no.: QA T/C 4763/18 (formerly RBCZ 10688/18) (T9I65) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)

Form CALL-1

ANWAR MUHAMMAD ATTIQUE v. TORTURE CLAIMS APPEAL BOARD

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