Case Document

100%

HCAL 399/2023

[2026] HKCFI 5348

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 399 of 2023

BETWEEN

	Ali Shamas	Applicant
	and
	Torture Claims Appeal Board /	Putative
	Non-Refoulement Claims Petition Office	Respondent
	and
	Director of Immigration	Putative
		Interested Party

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. The Applicant’s Form 86 be amended to name only the Torture Claims Appeal Board as the putative respondent and the Director as the putative interested party; and

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

Observations for the Applicant:

INTRODUCTION

1.By a Form 86 filed on 16 March 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 22 February 2023 (“the Board’s Decision”), which affirmed a decision by the Director of Immigration (“the Director”) dated 30 November 2021 in refusing the applicant’s non-refoulement protection claim. He named the Board and the Director as the proposed respondents and the Board as the proposed interested party.

2.I amended the Form 86 on my own motion to name only the Board as the putative respondent and the Director as the putative interested party.

3.The applicant requested for a hearing but he was absent at the scheduled hearing on 10 September 2026. From the court record, the Notice of Hearing dated 12 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.

BACKGROUND

6.The applicant is a national of Pakistan. He seeks non-refoulement protection on the basis that if he is refouled, he would be harmed or even killed by members of Pakistan Muslim League (Nawaz) (“PML(N)”). 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

7.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).

8.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/she is also required to make full and frank disclosure of all material facts to be verified by an affidavit.

9.In both of the Form 86 and his affirmation filed in support of the application, the applicant did not identify any grounds to apply for the judicial review. In particular, he did not point to any errors of law, procedural unfairness or irrationality of the Board’s Decision. Only a few photos which purportedly showing an injured person lying on a hospital bed and some documents in a foreign language were attached with the affirmation (but without any explanation or verification).

10.Looking at the Board’s Decision, the Board applied the correct legal principles in respect of each of all the applicable grounds under the USM [5-15]. It also bore in mind the correct legal principles in relation to the assessment of evidence, including the decision of not to conduct an oral hearing in this particular case and have the case dealt with by way of paper review only [16-20].

11.The Board took into consideration of the applicant’s case and evidence [21], including relevant Country of Origin Information [30-31] and the option of internal relocation [43-45].

12.After thoroughly analysing and assessing the above, the Board came to the findings and conclusions that none of the grounds was made out [32-42, 46].

13.Despite rigorous examination and anxious scrutiny, I could not find any errors of law, procedural unfairness or irrationality in the Board’s Decision. In my view, the applicant’s intended challenge to the Board’s Decision by way of judicial review is not reasonably arguable and has no realistic prospect of success.

CONCLUSION

14.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 24^th day of September 2026

(Cheung Ho Yat, Annson)
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

Notes for 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 to the Applicant on 24/9/2026 Ali Shamas Applicant’s ref. no.: Nil.		Sent 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 24/9/2026 Torture Claims Appeal Board / Non-Refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 19452 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 1559/21 (formerly RBCZ 11401/21) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)