Fahad Ali v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1421/2025

[2026] HKCFI 2063

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1421 of 2025

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:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 18 May 2023 of the Torture Claims Appeal Board (“the Board’s 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 18 August 2023. His application was filed on 20 June 2025, which is late for more than 1 year and 10 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 a national of Pakistan. He is an illegal immigrant. He lodged a non-refoulement claim on the basis that, if refouled, he will be harmed or killed by his political enemy of PML(Q).

5.Details of the applicant’s story can be found in the Board’s Decision. See hyperlink https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2025/HCAL001421_2025_files/the_Board's_Decision.pdf.

The Director’s Decision

6.The Director considered the applicant’s claim in relation to the following risks:

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

b.  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”);

c.  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

d.  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”).

7.By Notice of Decision dated 27 September 2022 (“the Director’s Decision”), the Director refused the applicant’s claim on all applicable risks because it was unsubstantiated.

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 27 April 2023, the Board conducted an oral hearing. He had given oral evidence and answered the Board’s questions.

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

(1)  The Board accepts the alleged facts of his claim. [43]

(2)  However, there is no genuine and substantial risk that the applicant will be killed or harmed by his enemies if he returns to Pakistan as his ill-treatment of the past did not meet the minimum level of severity and there was no evidence to show that his political enemies had a real intention to kill him. [44]-[46]

(3)  State protection will be available to him if he returns to Pakistan. [49]

(4)  Internal relocation is viable. [51]

10.For the reasons above, the Board dismissed the applicant’s appeal and affirmed the Director’s Decision.

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

11.The applicant has filed Form 86 dated 20 June 2025 for leave to apply for judicial review of the Board’s Decision.

12.In support of his application, the applicant raised the reasons below to challenge the Board’s Decision.

(1)  The Board’s Decision is wrong, unfair and unreasonable.

(2)  The Board had placed too much reliance on the country of origin information (“COI”) without taking into account his personal background and experience.

(3)  The Board only relied on the COI that supports state protection, but did not consider the COI that does not support state protection.

(4)  The Board did not give enough time for his preparation of evidence for his appeal.

DISCUSSION

13.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.

14.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

15.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.”

16.The grounds under paragraph 12 are bare assertions without any evidence in support. The Court of Appeal has held that such grounds are not valid to challenge the Board’s Decision[2]. The Board’s Decision did not mention that the applicant asked for more time to prepare his appeal. In fact, the Board did not challenge his evidence on the facts of his claim. The Board dismissed his appeal for its judgment on the facts admitted, which is squarely within the Board’s province.

17.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

18.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 21^st day of April 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