Mahboob Ahmed Alias Mahboob Ahmad v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 705/2023

[2026] HKCFI 5184

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 705 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 oral submissions by the Applicant in open court;

Order by Deputy High Court Judge Levy:

1.  The Form 86 be amended on the court’s own motion.

2.  There shall be no extension of time for the applicant to file the application for leave to apply for judicial review out of time.

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

Observations for the Applicant:

Introduction

1.By a “Notice of application for leave to apply for judicial review” in the prescribed Form 86 filed on 15 May 2023, the applicant applied for leave to apply for judicial review (“Leave Application”). The intended judicial review was against the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) dated 18 February 2022 (“Board’s Decision”) dismissing the applicant's appeal against a decision of the Director of Immigration (“Director”) dated 4 November 2010 rejecting the applicant's non-refoulement claim on all applicable grounds[1]  except the torture risk ground which had been determined by the Board’s rejection of the applicant’s appeal against the Director’s refusal on 23 December 2010. The Board’s Decision can be viewed at the following hyperlink: -

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2023/HCAL000705_2023_files/the_Board's_Decision.pdf

2.In his Form 86, the applicant provided the office address of the Director as the proposed interested party. As the Director should have been the proper putative interested party, the Form 86 shall be accordingly amended on the court’s own motion.

3.The basis of the applicant’s claim was that, if refouled to Pakistan, he would be harmed or killed by Ali, who was a supporter of the Pakistan People’s Party and wanted the applicant to transfer to him a piece of land which the applicant had inherited from his father. The Board’s reasoning and findings were set out in detail in the Board’s Decision and it is not necessary for me to repeat them. Unless otherwise specified, I shall also adopt the Board’s abbreviations and descriptions stated in the Board’s Decision.

4.At the applicant’s request for a hearing of the Leave Application, this court scheduled a hearing on 3 September 2026. The applicant attended the hearing in person. The applicant only submitted a hand-written letter as his submissions to court and had nothing to say.

Discussion

5.A leave application operates as a “filtering” process. Hence, there is no requirement or expectation to give elaborate reasons for my decision.[2] It is therefore sufficient to state my observations after considering the Board’s Decision and the applicant’s materials adduced.

6.In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly[3], and further to make full and frank disclosure of all material facts to be verified by an affidavit. The Form 86 provided no such grounds. In the supporting affirmation, the applicant averred unfairness and error of law as the Board had failed to conduct sufficient inquiry and give sufficient reason for the rejection of his appeal. He further alleged that the Board’s assessment of credibility was procedurally unfair and irrational. In the written submissions the applicant submitted to the court, the applicant was only repeating the facts of his claim, and the recent events happened at his home.

7.As the Courts have repeatedly stated, a finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality.[4]  In the present case, the Board found that the applicant’s evidence was full of exaggerations and contradictions. The Board found that the applicant was not a credible witness and rejected his claim concerning the land dispute with Ali. In any event, even if there were such a dispute, the Board found that Ali did not have any intention to kill the applicant. The Board therefore found that the applicant would not face any risk of harm if refouled. It further found that internal relocation would be reasonably viable. These are findings of fact, which the court in a judicial review will not interfere with, subject to there being any public law errors.

8.Bearing in mind the enhanced standard that should be adopted in scrutinizing the Board’s Decision, this court is satisfied that the Board correctly applied the law relating to all the grounds and observed a high standard of fairness. The applicant’s grounds stated in the supporting affirmation were vague and general and did not condescend to particulars. The written submissions the applicant provided at the hearing were mostly about the facts of his claim and also the new matters that allegedly happened since the hearing before the Board. A determination of new claims is not the role of this court. In the circumstances, the applicant has not shown any errors of law or procedural unfairness or irrationality in the Board’s Decision. The applicant’s intended challenge to the Board’s Decision is not reasonably arguable with realistic prospects of success such that would enable this court to grant leave[5].

Whether to extend time for the late application

9.Another matter I need to consider is the delay. Pursuant to O 53 r 4(1) of the Rules of the High Court, an application to apply for judicial review shall be made promptly and in any event within 3 months from the date of the Board’s Decision. The applicant was late for about 1 year. It is a lengthy delay. A very good reason shall be required to be provided.

10.The applicant only briefly alluded to the reason for the delay in [15] of the written grounds exhibited to the affirmation, stating that the Board did not send him the Board’s Decision. When asked at court, the applicant said that he was not even aware he had been late. Given this inconsistent explanation, I do not accept that he has provided a reasonable explanation for the delay. Having regard to the lengthy delay, and the lack of good reason for the delay, and more importantly, the lack of good prospects of success of his intended challenge, I refuse to exercise my discretion to grant the applicant an extension of the time to file the Leave Application out of time.

Order

11.The Form 86 be amended on the court’s own motion.

12.There shall be no extension of time for the applicant to file the application for leave to apply for judicial review out of time.

13.The applicant’s application for leave to apply for judicial review be dismissed.

Dated the 24^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