Case Detail

HCAL 931/2020

[2025] HKCFI 3639

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 931 OF 2020

____________

BETWEEN
	Ahmed Nabeel	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:	8 August 2025
Date of Handing Down of Decision:	19 August 2025

______________

D E C I S I O N

______________

Background

1. By way of summons filed on 3 July 2025 (“the Summons”), the applicant applies for an extension of time to appeal against my order made on 21 May 2025, which dismissed the applicant’s application for leave to apply for judicial review in respect of the decision of the Torture Claims Appeal Board (“the Board”) dated 28 April 2020.

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 21 May 2025, the last day for the applicant to lodge an appeal was on 4 June 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 Summons, the applicant alleged that he could not apply on time because he did not receive the court’s letter. In his supporting affirmation dated 3 July 2025, the applicant did not give any further reason for the delay. He merely stated that the decisions of the Director of Immigration and the Board were unlawful, his life was in danger in his home country and it is a matter of a human life. The applicant did not give any ground for appealing my decision at all.

8. At the hearing of the Summons on 8 August 2025, the applicant said that he did not receive my decision because he had moved from his address in Cheung Sha Wan to another address in Sham Shui Po about 11 months ago. He only came to know about my decision about a month ago when his friend told him about it. His friend checked the internet and found my decision in respect of the applicant.

9. However, my decision was sent to the applicant’s then address in Sham Shui Po (although the applicant gave another address in Sham Shui Po to this court at the hearing on 8 August 2025). Thus, his moving from Cheung Sha Wan to Sham Shui Po could not be the reason for not receiving my decision.

10. The applicant admitted that he did not inform the Immigration Department about his change of address, but alleged that he was not asked to provide his new address. He also alleged that about 3 months ago when he tried to inform the Immigration Department about his change of address, the immigration officer said that they were busy and asked the applicant to tell them later.

11. As it is the applicant’s duty to inform the Immigration Department whenever he has changed his address, I do not find the applicant’s explanation for the delay satisfactory.

12. Nevertheless, since the delay in the present case was not very long, just about a month, the arguability of the intended appeal is an important consideration (see Re Gurung Min Bahadur, supra). Thus, I am not going to take issue on the delay or the reason for the delay, but will consider the merits of the intended appeal or the intended judicial review.

13. 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 28 April 2020, which can be viewed in the hyperlink attached to the Form CALL-1 dated 21 May 2025.

14. The applicant failed to advance any ground for the intended appeal in the Summons or his supporting affirmation. The applicant filed a written submission to this court on 30 July 2025, the contents of which also did not disclose any ground for the intended appeal.

15. At the hearing on 8 August 2025, the applicant merely asserted that his brother was killed on 20 September 2024 (ie after the Board’s decision), and he asked this court to give him some time to get the proof including some photographs.

16. The applicant gave different accounts to this court and the Immigration Department about the name of the brother who was killed and the number of brothers he has. In any event, it is not for this court to investigate into these matters or to receive new evidence from the applicant. His brother’s death cannot amount to any valid ground for the intended appeal or the intended judicial review at all.

17. 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).

18. 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.

19. 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.

20. 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, even though the delay was not too long.

Conclusion

21. For reasons aforesaid, the Summons is dismissed.

(Michael WONG)
Deputy High Court Judge

The applicant appearing in person

HCAL 931/2020

[2025] HKCFI 2055

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 931 OF 2020

BETWEEN
	Ahmed Nabeel	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 the applicant being absent 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”, “Director of Immigration” be added as the putative interested party and the decision in respect of which relief is sought be amended to “The Torture Claims Appeal Board’s decision dated 28 April 2020”.
2.  The applicant’s application for leave to apply for judicial review in respect of the Director of Immigration’s decision dated 25 March 2019 be dismissed.
3.  The applicant’s application for leave to apply for judicial review in respect of the Torture Claims Appeal Board’s decision dated 28 April 2020 be dismissed.

Observations for the applicant:

The Leave Application

1. By way of Form 86 dated and filed on 19 May 2020, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Director of Immigration (“the Director”) dated 25 March 2019 (“the Director’s Decision”) and the decision of the Torture Claims Appeal Board (“the Board”) dated 29 April 2020.

2. In relation to the applicant’s claim for non-refoulement protection, the Board made only one decision on 28 April 2020 (“the Board's Decision”). It is clear that the applicant was referring to the Board's Decision but stated a wrong date.

3. Only the Board’s Decision is reviewable by judicial process and not the Director’s Decision, as the Director’s Decision was superseded by the Board’s Decision and is no longer susceptible to judicial review (see Re Moshsin Ali, HCAL 2048 of 2018, dated 28.09.2022). The Leave Application in respect of the Director’s Decision is hence dismissed.

4. This court will only consider the Leave Application in respect of 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/HCAL000931_2020_files/the_Board's_Decision.pdf

5. The Board found that the applicant’s claims for non-refoulement protection were not made out on any of the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board confirmed the Director’s Decision.

6. However, the applicant had previously lodged a torture claim under Part VIIC of the Immigration Ordinance (“the Torture Claim”), which was rejected by the Director on 31 October 2011. The applicant filed a petition against that decision to the Petition Team of the Security Bureau (“the Petition Team”) on 2 November 2011, and the adjudicator of the Petition Team dismissed the petition on 17 November 2011.

7. Thus, the Board’s Decision, which is the subject of the Leave Application, only dealt with the remaining 3 grounds under the USM namely BOR 2 Risk[1], BOR 3 Risk[2] and Persecution Risk[3].

Amendments

8. The applicant named the Director and the adjudicator of the Non-refoulement Claims Petition Office as the putative respondents and did not name any putative interested party in Form 86, when the Board should be the putative respondent and the Director should be the putative interested party.

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

10. As aforesaid, the applicant should be applying for leave in respect of the Board’s Decision, and hence, on this court’s own motion, the decision in respect of which relief is sought is amended to the Board’s Decision.

The applicant’s case

11. 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.

12. In sum, the applicant claimed for non-refoulement protection, as he feared being harmed by his cousin named Zubair if he were to return to Pakistan because he refused to transfer his land to Zubair.

Oral hearing

13. The applicant requested for an oral hearing of the Leave Application. However, he was absent at the hearing on 13 May 2025.

14. As held in Re Abdus Salam [2019] HKCA 1091, an application for leave to bring judicial review should not be dismissed for want of prosecution merely because the applicant failed to attend the oral hearing of the leave application. The correct approach is to treat the applicant as having withdrawn the request for a hearing by reason of the absence at the hearing, and to proceed to determine the leave application on its merits.

15. Thus, this court will proceed to consider the merits of the Leave Application based on the written materials before this court.

Grounds for judicial review

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

17. However, the applicant failed to identify any ground for the intended judicial review in Form 86, nor in his supporting affirmation dated 19 May 2020. He merely stated in the affirmation that he was not in possession of any of his documents yet and he would be in a position to submit the rest of the documents later on.

Discussion

18. 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).

19. Thus, despite the lack of any specific grounds for judicial review being advanced, this court will proceed to examine and scrutinize the Board’s Decision for any error of law, procedural unfairness, and irrationality.

20. In assessing the appeal by the applicant, the Board arranged an oral hearing on 11 March 2020, and the applicant was present at the hearing. Hence, the applicant did have the opportunity to present all his evidence and proof to the Board. It is noted from the Board’s Decision that the applicant had asked his friend to obtain documents relating to his case since 2012, but no such documents were ever produced. The applicant’s bare allegation in his supporting affirmation that he would be in a position to submit further documents later on is simply not credible.

21. In any event, as aforesaid, the assessment of his claim is purely within the ambit of the Director and the Board. This court would not re-assess his claim afresh and receive documents in support of his claim for non-refoulement protection. As held in Nupur Mst v Director of Immigration[2018] HKCA 524, §14(5), due to the difference in the role of the court in a judicial review and the role of the primary decision-makers, an applicant cannot rely on materials which have not been produced before the Board or the Director to contend that the latter erred in not taking those into account unless the decision-makers have a positive duty to elicit such materials on their own volition.

22. After due consideration of the law and the evidence of the applicant, the Board concluded that even applying the relatively low standard of proof required in the assessment of non-refoulement claims, the applicant had fabricated the risks he faced as the basis of his claim, and there was not a real risk that the applicant would face any of the proscribed forms of harm should he return to Pakistan.

23. Although the Board did not re-assess the Torture Claim, it was unnecessary to consider the same, as the Director had already considered and refused the Torture Claim on 31 October 2011 and his petition against that decision was dismissed on 17 November 2011.

24. The Board also did not consider availability of state protection and viability of internal relocation. However, as the applicant’s alleged dispute with Zubair is only a private dispute concerning land, and the applicant did not suggest that he would not have any state protection, it is therefore not necessary for the Board to consider the same.

25. As to internal relocation, although the applicant did mention that Zubair could find him wherever he went within Pakistan, it is a well-recognised principle that the decision-makers only need 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).

26. 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 further consider internal relocation.

27. 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 error 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.

28. 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 applicant has failed to establish such a claim and hence leave must be refused.

Conclusion

29. For reasons aforesaid, the Leave Application in respect of the Board’s Decision is also dismissed.

Dated the 21^st day of May 2025

( Thomas Chan )
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: 21/5/2025 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: 21/5/2025 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative respondent’s ref. no.: USM 15766/19/4/24/P3126 Director of Immigration Putative interested party’s ref. no.: QA T/C 4408/18 (formerly as RBCZ 2000047/14) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)

Form CALL-1

[1]Risk of violation of right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance.

[2]Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance.

[3]Risk of persecution with reference to the non-refoulement principles under Article 33 of the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol.

AHMED NABEEL v. TORTURE CLAIMS APPEAL BOARD

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	consideration of the documents only; or
	consideration of the documents and the applicant being absent in open court ;