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

HCAL 195/2023

[2026] HKCFI 5034

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 195 of 2023

BETWEEN

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 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 Andrew Li:

1.  Extension of time to file the Form 86 be refused;

2.  The Applicant’s Form 86 be amended to name the Director of Immigration as the putative interest party; and

3.  The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

INTRODUCTION

1.By a Form 86 filed on 10 February 2023 (“the Form 86”), the applicant applied for leave to apply for judicial review of a decision by the Torture Claims Appeal Board (“the Board”) dated 21 July 2022 (“the Board’s Decision”), which affirmed a decision by the Director of Immigration (“the Director”) dated 12 June 2020 in refusing the applicant’s non‑refoulement protection claim. He named the Board as the putative respondent and himself as the interested parties.

2.I amended the Form 86 on my own motion to name the Director instead of the applicant as the putative interested party.

3.The applicant requested for a hearing but he was absent at the scheduled hearing on 31 August 2026. From the court record, the Notice of Hearing dated 5 August 2026 was sent to an address updated through the Immigration Department. Such updated address was, presumably, provided by the applicant to the Immigration Department in the first place.

4.Bearing in mind what Barma JA held in Re Abdus Salam [2019] HKCA 1091 at [19], i.e. in an application for leave to bring judicial review proceedings, it is not essential for the applicant to attend an oral hearing, when the applicant fails to turn up at an oral hearing he/she had requested, it should be regarded as a decision to forego the right to the requested oral hearing and the court can deal with the application on paper. Applying the same logic, if the applicant failed to provide an updated address to receive notices from the court, it also signals a disregard of, and indeed a decision to forego, the right of attending an oral hearing.

5.I therefore decided to proceed to deal with this application on paper notwithstanding the applicant’s absence at the hearing.

6.In addition, I noticed that the Board’s Decision was dated 21 July 2022 while the Form 86 was filed almost 7 months later on 10 February 2023 only. Under Order 53, rule 4(1) of the Rules of the High Court (Cap 4A), an application for leave to apply for judicial review should be made promptly and in any event within three months from the date when grounds for the application first arose. There was no explanation for the delay in filing the application nor was there any application to ask for an extension of time. In the circumstances, the court would refuse any extension of time to file the leave application.

BACKGROUND

7.The applicant is a national of Pakistan. He seeks non-refoulement protection on the basis that if he is refouled, he would be harmed by his political enemies. His personal background, the relevant facts and relevant procedural history have been sufficiently set out in the Board’s Decision, which can be accessed through a hyperlink[1]. I shall not repeat the same here.

DISCUSSION

8.In a judicial review, this court does not provide a further avenue of appeal. Though in non-refoulement case an enhanced standard in scrutinizing the decision of the Board is required given the seriousness of the issue at hand, this court should not usurp the role of the Board, which together with the Director are the primary decision-makers. This 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 (Nupur Mst v Director of Immigration [2018] HKCA 524, [14(1)]). There must be a reasonably arguable claim with a realistic prospect of success before leave for judicial review will be granted (Peter Po Fun Chan v Winnie Cheung & Anor (2007) 10 HKCFAR 676).

9.The applicant has not specified any grounds on which relief is sought in the Form 86 and the affirmation filed in support of the leave application other than to say that his life is still in danger in his home country.

10.It has been held that in a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly: Ho Loy v Director of Environmental Protection (unreported, HCAL 21/2015, 22 December 2016) at [142]. He is also required to make full and frank disclosure of all material facts to be verified by an affidavit.

11.Looking at the Board’s Decision, the Board bore in mind the correct legal principles in respect of each of the four applicable grounds under the USM.

12.The Board has carefully taken into consideration of the applicant’s case and evidence, including the relevant COI.

13.It is clear that the Board did not accept any of the applicant’s claims due to the “considerable inconsistencies” in his evidence [48]. Having considered all the evidence, the Board concluded that the applicant has manufactured the entirety of his claims in relation to his involvement in the PML(N) [49]. Further, as the PML(N) of which the applicant supported was in power and PTI was no longer in power at the time of the hearing below and that the applicant was found only had a very low level involvement with the PML(N), the Board was not satisfied that any ongoing political turbulence in Pakistan would result in a real risk or real chance that the applicant would suffer harm that meets any of the non-refoulement grounds upon his return to his country [50].           

14.Despite rigorous examination and anxious scrutiny, I could not find any errors of law, procedural unfairness or irrationality in the Board’s Decision. The applicant’s intended challenge to the Board’s Decision is not reasonably arguable.  

CONCLUSION

15.For the above reasons, I am not satisfied that this court should intervene by way of judicial review. I therefore dismiss the application.

Dated the 11^th day of September 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