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HCAL 1455/2021
[2026] HKCFI 965
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1455 of 2021
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BETWEEN
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Shahzad Ahmad |
Applicant |
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and |
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Torture Claims Appeal Board/ |
Putative |
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Non-refoulement Claims Petition Office |
Respondent |
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and |
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Director of Immigration |
Putative |
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Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following:
Order by Deputy High Court Judge (Non-refoulement Claims) Sabrina Ho:
1. The Applicant’s Form 86 be amended to name the Torture Claims Appeal Board/ Non-refoulement Claims Petition Office as the only putative respondent and the Director of Immigration as the only putative interested party.
2. The application for leave to apply for judicial review be dismissed.
Observations for the Applicant:
Introduction
1. By a Form 86 filed on 19 October 2021 (the “Form”), the Applicant applied for leave to apply for judicial review (the “Leave Application”) against the following decisions:
a. The Decision of the Director of Immigration (“the Director”) dated 16 October 2015 (“the 2015 Imm Decision”);
b. The Decision of the Torture Claims Appeal Board (“the Board”) dated 31 March 2017 (the “2017 Board’s Decision”). The 2017 Board Decision was the decision of the Board concerning the Applicant’s appeal against the 2015 Imm Decision; and
c. The Decision of the Board dated 29 March 2021 (the “2021 Board’s Decision”)
2. The Leave Applicant is supported by the Applicant’s Affirmation dated 19 October 2021 (the “Affirmation”).
3. The hearing for the Leave Application took place on 19 January 2026 (“the Hearing”).
The 2015 Imm Decision, the 2017 Board’s Decision and the 2021 Board’s Decision
4. The 2015 Imm Decision concerns the Applicant’s claim for non-refoulement protection based on the grounds of risk of torture under Part VIIC of the Immigration Ordinance (Cap. 115), risk of torture or cruel, inhuman or degrading treatment or publishment under Article 3 of Section 8 of the Hong Kong Bill of Rights Ordinance (Cap. 383) and risk of persecution with reference to the non-refoulment principles under Article 33 of the 1951 Convention. In the 2015 Imm Decision, the Director rejected the Applicant’s claim for protection. The Applicant appealed and the appeal was rejected by the Board by the 2017 Board’s Decision.
5. By another decision dated 8 June 2017, the Director further considered the Applicant’s application for non-refoulement protection based the ground of right to life under Article 2 of the Hong Kong Bill of Rights, but rejected the Applicant’s claim for protection. The Applicant appealed against this decision. The appeal was rejected by the 2021 Board’s Decision.
6. In the Form, the Applicant sought leave for judicial review against the 2015 Imm Decision. But the 2015 Imm Decision has been superseded by the 2017 Board’s Decision, such that it is no longer susceptible to judicial review: see Re Moshin Ali [2018] HKCA 549 at para. 45.
7. In the circumstances, I will take the Leave Application to be an application for leave for judicial review against the 2017 Board’s Decision and the 2021 Board’s Decision.
8. I amend the Form on my own motion to name the Board as the only putative Respondent and the Director as the only putative interested party.
Background
9. The Applicant’s background, the basis of his claims and the arguments he advanced had been set out in detail in the 2017 Board’s Decision and the 2021 Board’s Decision, and it is not necessary for me to repeat them here. The hyperlink to the 2017 Board’s Decision[1] and the 2021 Board’s Decision[2] is included below for reference.
Leave Application Out of Time
10. The 2017 Board’s Decision was issued on 31 March 2017. The 2021 Board’s Decision was issued on 29 March 2021. The Leave Application was only taken out on 18 October 2021, both beyond the time prescribed for filing an application for leave for judicial review, which is 3 months from the date of the respective Board’s Decision: see Order 53 Rule 4 RHC (Cap 4A). Both of the delays were substantial, for over 4 years and 6 months with respect to the 2017 Board’s Decision, and for over 6 months with respect to the 2021 Board’s Decision.
11. The Applicant has not applied for extension of time to take out the Leave Application, nor has he provided any explanation for the delay.
12. In considering whether time should be extended for an application for leave for judicial review, the Court will consider, amongst other things, the following:
a. The length of the delay;
b. The explanation of the delay;
c. The merits of the substantive application;
d. The prejudice to the applicant if time is not extended, and the prejudice to the respondent and to public administration if a challenge is allowed to proceed out of time; and
e. The question of general public importance.
See: AW Director of Immigration and William Lam CACV 63/2015, 3 November 2015 at para. 27
13. As I have pointed out above, the length of the delay was substantial and there was no explanation for the delay. The Leave Application also has no merits, for reasons which I will explain below. Hence, even if there had been an application by the Applicant for extension of time to apply for leave for the judicial review, I would have rejected it.
Leave Application unmeritorious
14. The relevant legal principles are well established. The Court’s role in a judicial review is not to provide a further avenue of appeal. The primary decision makers are the Director and the Board. Though in non-refoulement cases, the Court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. Assessment of evidence, country of origin information (COI) materials, 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, procedural unfairness or irrationality in the decision of the Board: see Nupur Mst v Director of Immigration [2018] HKCA 524 at para. 14.
15. In the Form, the Applicant contended that the 2017 Board’s Decision and the 2021 Board’s Decision are unlawful. Amongst other things, the Applicant complained that the Board failed to make sufficient inquiry before finalsing the Decisions, and that the Board failed to give sufficient chance for him to arrange the relevant evidence to be presented to the Director and the Board. The Applicant asks the Court to grant his Leave Application so that he can get legal assistance from the Legal Aid Department.
16. In the Affirmation, the Applicant says that the 2017 Board’s Decision and the 2021 Board’s Decision are unlawful. The Decisions failed to take into account the dangers in the Applicant’s life. The Applicant repeated his request that the Leave Application be granted so that he can seek legal assistance from the Legal Aid Department.
17. In a letter submitted by the Applicant on 13 January 2026 before the Hearing (“the Letter”), the Applicant claimed that he is a social media activist against the government and army of Pakistan for over 2 decades. He said that he is running a Facebook account showing videos against the government and the law enforcement agencies in Pakistan. He enclosed screenshots of the above Facebook account as well as some paper clippings to the Letter. He also claimed that on 12 May 2025, 5 June 2025 and many other days, the Pakistani military officers have called his Facebook messenger and threatened to kill him. The Pakistani military officers also went to his house in Pakistan and threatened his father with bad fate. At the Hearing, the Applicant repeated the above assertions.
18. Having considered the Leave Application, I do not consider the Applicant’s intended challenge against the 2017 Board’s Decision or the 2021 Board’s Decision to be reasonably arguable with any realistic prospect of success. I have considered the above Board’s Decisions in detail. The Board had fully considered the Applicant’s grounds for challenging the Director’s decisions before it reached the 2017 Board’s Decision and the 2021 Board’s Decision.
19. In the 2017 Board’s Decision, the Board had taken into account the Applicant’s alleged risks to his life, including his fear that he would be killed by a member of the National Assembly in his area known as Anwar Ali Cheema (“Cheema”) and/or his associates, his former girlfriend’s family and/or the Taliban members and his cousin known as Tariq Zaman (“Zaman”). Having considered all the evidence provided by the Applicant, the Board reached the conclusion that the risk of harm is low. Further, upon reviewing the COI of Pakistan, the Board took the view that reasonable protection from the Pakistani government is available to the Applicant should he return to Pakistan. Lastly, the Board took the view that internal relocation options are available in Pakistan, which further lower or negate the perceived risk of harm: see 2017 Board’s Decision paras. 32-61.
20. In the 2021 Board’s Decision, the Board had also considered the evidence put forward by the Applicant in a detailed manner, including his fear that he would be harmed or killed by Cheema and/or his associates, his ex-girlfriend’s family and/or the Taliban members and Zaman if he returns to Pakistan: see 2021 Board’s Decision paras. 55-117. On the basis of the Board’s assessment of the evidence, the Board reached the conclusion that the risk of harm to the Applicant was low: see paras. 118-149.
21. There is nothing to suggest that the Board had failed to take into account the alleged risks to the Applicant’s life in reaching the 2017 Board’s Decision or the 2021 Board’s Decision. I do not consider that the Applicant had been deprived of his chance to adduce evidence before the Board.
22. As for the Applicant’s assertions in the Letter and raised at the Hearing that he is facing life risks due to his role as a social media activist. These new assertions are not contained in his Affirmation. Further, they are merely bare assertions on the Applicant’s part. There is no documentary evidence of the alleged calls from the Pakistani military, or their threats to the Applicant’s father in Pakistan. Hence, they cannot assist the Applicant in the Leave Application.
23. All in all, I do not consider there to be any error of law, procedural unfairness or irrationality in the 2017 Board’s Decision or the 2021 Board’s Decision.
24. Leave application of this sort is meant to be a filtering process and this Court is not expected to give elaborated reasons for its decision: see Re Zunariyah [2018] HKCA 14 at para. 23). I have considered all the relevant documents and the grounds raised by the Applicant in reaching the present decision.
Conclusion
25. For the reasons stated above, I make an order that the Leave Application be dismissed.
Dated the 25th day of February 2026
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(Annson Cheung)
for Registrar, High Court
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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:
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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)).
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Sent to the Applicant
on 25/2/2026
Shahzad Ahmad
Applicant’s ref. no:
Nil |
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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 25/2/2026
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 2498/15/11/10/P683; BOR 1177/20/8/1/P303
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 148/08 (formerly RBCZ 1371/07); RBCZ 9001978/17 (formerly RBCZ 1371/07)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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