MAZHAR UL HAQ v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 491/2023

[2026] HKCFI 4418

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 491 of 2023

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 the Applicant being absent in open court;

1.  Form 86 be amended on the court’s own motion that the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office be named as the Putative Respondent.

2.  Extension of time to file the application for leave to apply for Judicial Review be refused.

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

Observations for the Applicant:

Introduction

1.  By Form 86 filed on 29 March 2023 (the “Form 86”), the Applicant sought leave to apply for judicial review (the “Leave Application”) against the decision of the Torture Claims Appeal Board / Non‑refoulement Claims Petition Office (the “Board”) dated 21 November 2022 (the “Board’s Decision”).

2.  To ensure that the proposed respondent is properly named, I make an order to amend the Form 86 accordingly on the court’s own motion.

3.  An oral hearing was requested by the Applicant. It took place before me on 20 July 2026 (the “Hearing”) and the Applicant was absent.

Background

4.  The Applicant’s background, the basis of his claim and the arguments he advanced had been set out in detail in the Board’s Decision, and it is not necessary for me to repeat the same here. The hyperlink to the Board’s Decision is included below[1] for reference. In short, the Applicant claims that he will be harmed by loan sharks (the “Adversaries”) if he were to return to Pakistan. He also claimed that he fears that he will be harmed by the Indian military as a result of the border conflicts between India and Pakistan.

The Leave Application is out of time

5.  By virtue of Order 53, rule 4(1) of the Rules of the High Court, Cap 4A, the applicant has to make the Leave Application within 3 months when the grounds for the Leave Application first arose, ie when the Board’s Decision was made. The Form 86 was filed late for about 5 weeks.

6.  In AW v Director of Immigration and William Lam CACV 63/2015 (unreported, 3 November 2015), the Court of Appeal held that the following factors are relevant in determining whether to grant leave to file an application for leave to apply for judicial review out of time: (1) length of the delay; (2) explanation for the delay; (3) merits of the substantive application; (4) prejudice to the applicant if leave is refused vis-à-vis that to the respondent and public administration if leave is granted; and (5) whether the application raises any questions of general public importance, and whether those questions are likely to have to be resolved by the courts in any event. Usually, the first three factors, particularly merits, are most crucial and determinative. If the sum total of these three factors are in favour of grant of extension, the court could be more relaxed in the remaining two. Conversely, if it is against the grant of extension, there is no need to consider the remaining two factors.

7.  In the present case, the delay of about 5 weeks is not insignificant. In his affirmation in support of the Leave Application, the Applicant claimed that he was late because he did not receive any “letter” from the Board. As the Applicant has failed to attend the Hearing to address the court’s concerns about the delay (e.g. whether the Applicant has properly notified the Board of his change of address, if any), I am unable to accept his explanation on face value.

8.  In my view, the most crucial factor in deciding whether to exercise my discretion to extend time is the merits of the Leave Application. If it is bound to fail, no meaningful purpose can be served by granting leave even if I am prepared to assume in favour of the Applicant that he has a reasonable explanation for the delay. Hence, as a matter of expediency, I shall focus on the merits of the Leave Application, which are considered below.

Merits

9.  It is trite law that: -

(1)  Determination of the merits of a non-refoulement claim is essentially within the remit of the Director and the Board, who are the primary decision-makers in the evaluation of the evidence based on the materials available to them. A court will not usurp their primary decision-making role in a judicial review, which is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh in the absence of any legal error. 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: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

(2)  An applicant, even if unrepresented, is required to properly identify the grounds of judicial review in the Form 86, and to fully and frankly disclose all material facts and potential legal answers, see: Ho Loy & Another v Director of Environmental Protection (HCAL 21/2015, 22 December 2016) per Chow J. (as he was then) at §142.

10.  In the Form 86 and the accompanying supporting affirmation, the Applicant only advanced what appears to be generic grounds in support of the Leave Application. Apart from repeating his factual case, the Applicant also complained about: (i) the Board’s alleged refusal to consider documents submitted by the Applicant that were in his native language (the “Documents”) or to give the Applicant time to arrange for translation; and (ii) the quality of the interpretation service at the hearing before the Board as the interpreter was impatient.

11.  I do not consider the complaint about alleged language difficulty to be meritorious: -

(1)  The Applicant has completely failed to condescend to particulars. For example, there is no attempt to identify what the alleged Documents were and how they support the Applicant’s claim. There is also no elaboration as to how the alleged difficulty with the interpreter gives rise to any unfairness in the conduct of the hearing before the Board and how the Applicant was prejudiced as a result.

(2)  To date, the Applicant has failed to produce the Documents and their translation.

(3)  It is also not apparent from the Board’s decision that these complaints were properly raised at the hearing before the Board or that the Board had any difficulty understanding the Applicant’s evidence (§§12, 37). As noted by the Board, the Applicant was also able to read and speak some English (§38). The Board had also considered the lack of supporting evidence from the Applicant and that opportunities have been afforded to the Applicant to gather the necessary documentary evidence in support of his claim (§94).

12.  Having examined the Board’s Decision, the papers and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly applied the law and key legal principles relating to all applicable grounds, identified the salient issues and observed the requisite high standard of fairness, having regard to the following: -

(1)  In relation to the alleged threat from the Adversaries, the Board was entitled to find the Applicant’s account to be incredible given that material parts of his evidence were unsatisfactory, for example, the Applicant was unable to give a proper account of the identity of the Adversaries, the value of loan which he allegedly obtained was unusually high but yet no security was provided, the circumstances in which he lent substantial sums of money from the Adversaries and his evidence of the Adversaries’ relatively passive stance for over a year after the Applicant began to default was implausible (§§83-92, 95-96). I do not see any basis to interfere with the Board’s finding that there was no risk of threat from the Adversaries.

(2)  I also find no reason to disturb the Board’s finding that the Applicant has exaggerated the danger arising from the military conflict between India and Pakistan. As noted by the Board, the Applicant’s siblings have continued to reside in his home area. As reflected in the available Country of Information (“COI”) materials, the level of casualty resulted from the occasional skirmishes is in fact very low (about 1 out of 16,784 per year in 2019-2020) (§97).

(3)  In any event, having regard to relevant COI and the personal circumstances of the Applicant, the Board cannot be said to be irrational in finding that reasonable state protection and internal relocation alternatives were available to the Applicant. The Applicant is an able-bodied adult with working experience and could relocate to other cities such as Karachi or Multan to avoid the danger posed by the Adversaries or the military conflict (which was limited to the border area in proximity of the “Line of Control”) (Appendix II of the Board’s Decision). There is no credible evidence to support the Applicant’s bare assertion that the Adversaries would have the means to pursue him throughout Pakistan (§§100-130).

13.  Therefore, I am not satisfied that the Board has erred in the enhanced Wednesbury sense. The Applicant’s intended challenge of the Board’s Decision is not reasonably arguable with any realistic prospects of success. I see no reason to grant any time extension.

Conclusion

14.  In the premises, I make an order that the Form 86 be amended as described above and the Leave Application be dismissed as it was made out of time.

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