Case Detail

HCAL 954/2020

[2025] HKCFI 5274

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 954 OF 2020

____________

BETWEEN

	Ahmed Hamza	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:	22 October 2025
Date of Handing Down of Decision:	11 November 2025

______________

D E C I S I O N

______________

Background

1. By way of summons filed on 9 September 2025 (“the Summons”), the applicant applies for an extension of time to appeal against my order made on 27 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 6 May 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 27 May 2025, the last day for the applicant to lodge an appeal was on 10 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 did not receive the court’s letter and his life was still in danger in his home country. In his supporting affirmation dated 9 September 2025, the applicant alleged that the decisions of the Director of Immigration (“the Director”), the Board and this court were unlawful and his life was in danger in his home country.

8. At the hearing of the Summons on 22 October 2025, the applicant claimed that he did not receive the court’s letter, but the Immigration officer informed him about the court’s decision 4 weeks ago. He also claimed that he had moved his address from Yaumati to Tuen Mun about two years ago, but he did not inform the Immigration Department about this because he was not aware that he had to inform the Immigration Department about his change of address. When I asked the applicant for his grounds of the intended appeal, the applicant simply said that he would be in danger if he goes back.

9. The applicant’s claim that he was not aware of the requirement of reporting his change of address to the Immigration Department is simply not credible. Under section 37ZA(2) of the Immigration Ordinance, Cap 115, the applicant is under a duty to notify the Director and the Board (on appeal) in writing of any change of his address as soon as practicable after the change. It is inconceivable that the Immigration Department would not have informed the applicant about this requirement. According to the applicant, he had to report to the Immigration Department every two weeks. There is no reason why the Immigration Department would not have asked the applicant to provide his updated address during the past two years when the applicant went there for regular reporting. Thus, I cannot accept the applicant’s explanation in this regard.

10. Even assuming that the applicant did receive this court’s decision late, it was caused by the applicant’s own fault in not reporting his change of address to the Director or the Board. This cannot be an excuse for seeking an extension of time to appeal.

11. In any event, the applicant failed to advance any ground for the intended appeal in the Summons, his supporting affirmation and at the hearing on 22 October 2025. His allegation that the decisions of the Director, the Board and this court were unlawful was just a general accusation without any particulars. It cannot amount to any valid ground for the intended appeal or the intended judicial review at all.

12. The applicant’s allegation that his life would be in danger if he returns to his home country cannot be a ground for the intended appeal or the intended judicial review either. The Board had already assessed the applicant’s alleged danger and found the applicant’s claim not credible. It is not permissible for the applicant to challenge the Board’s finding of facts in an application for judicial review. The applicant has also failed to state any ground or to show why my decision was wrong apart from the general allegation that it was unlawful.

13. 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).

14. 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.

15. 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

16. For reasons aforesaid, the Summons is dismissed.

	(Michael WONG)
	Deputy High Court Judge

The applicant appearing in person

HCAL 954/2020

[2025] HKCFI 2151

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 954 OF 2020

BETWEEN
	Ahmed Hamza	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 JudgeMichael WONG:

1. On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board”, and “Director of Immigration” be added as the putative interested party.
2. 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 21 May 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 6 May 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/HCAL000954_2020_files/the_Board's_Decision.pdf

2. 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 decision of the Director of Immigration (“the Director”) dated 17 August 2018 (“the Director’s Decision”).

Amendments

3. In Form 86, the applicant named “Torture Claims Appeal Board Non Refoulement Claim Petition Office” as the putative respondent and did not name any putative interested party. However, only the Board should be named as the putative respondent. The Non-refoulement Claims Petition Office is just an office which provides administrative and secretariat support to the adjudicators of the Board and should not be named as a putative respondent at all.

4. Thus, this court makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board” and to add “Director of Immigration” as the putative interested party.

The applicant’s case

5. 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.

6. In sum, the applicant claimed for non-refoulement protection because he would be harmed or mistreated by members/supporters of the Pakistan Muslim League (Nawaz) (“PML(N)”) if he were to be refouled to Pakistan as he supported the Pakistan Tehreek-e-Insaf (“PTI”).

Oral hearing

7. The applicant requested for an oral hearing of the Leave Application. However, the applicant was absent at the hearing on 15 May 2025.

8. 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.

9. 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

10. 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).

11. The applicant did not advance any ground for the intended judicial review in Form 86, nor in his supporting affirmation dated 21 May 2020. The applicant merely stated in the affirmation that he was not satisfied with the decision of Immigration as his life was still in danger in his home country.

Discussion

12. 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).

13. Moreover, 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[2018] HKCA 549). Thus, this court will only consider the Leave Application in respect of the Board’s Decision.

14. In assessing the appeal by the applicant, the Board held an oral hearing on 12 September 2019. The applicant was present and was given the chance to present his case and grounds of appeal to the Board in person. The Board carefully examined his evidence and questioned the applicant for details.

15. As can be seen from the Board’s Decision, the Board gave very full and detailed reasoning in rejecting the applicant’s claims. The Board found that the applicant’s evidence with respect to his claimed PTI support to be deficient in many respects and held several other concerns about the plausibility of his claim to be of ongoing interest to PML(N) members. The applicant admitted that he was not even a member of PTI but a mere supporter. Yet, the Board did not accept that the applicant was or ever had been a supporter of PTI or that he had engaged in any activities in support of the PTI. As such, the Board found that the applicant’s claims were not credible, as he had not provided a truthful account of his circumstances in Pakistan and the reasons that led him to depart that country.

16. Thus, after considering all the evidence and in the light of the Board’s findings, the Board concluded that there was not a real risk the applicant would face any of the proscribed forms of harm should he return to Pakistan.

17. The Board did not consider availability of state protection and viability of internal relocation. However, as the applicant’s claim and the matters giving rise to his claim for non-refoulement protection was rejected in its entirety, it is therefore not necessary for the Board to consider the availability of state protection.

18. 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).

19. 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.

20. The assessment of evidence, country of origin information and risk of harm were primarily within the realm of the Board. The Board is entitled to come to its own conclusion. If the applicant is seeking to challenge the Board’s finding of facts, it is not permissible in an application for judicial review.

21. 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.

22. 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

23. For reasons aforesaid, the Leave Application is dismissed.

Dated the 27^thday of May 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 the applicant’s 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 27 May 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: 27 May 2025 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative respondent’s ref. no.: USM 13267/18/9/28/P2606 Director of Immigration Putative interested party’s ref. no.: QA T/C 3324/18 (formerly as RBCZ 11690/17) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)

Form CALL-1

AHMED HAMZA 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;