ISRAR KIYANI MOHAMMAD v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2099/2025

[2026] HKCFI 2958

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2099 of 2025

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;

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

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

Introduction

1.  In the prescribed Form 86 filed on 17 September 2025, the applicant applied for leave to apply for judicial review (“Leave Application”). The intended judicial review was against a direction by letter dated 8 January 2020 issued by the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”). In the letter the Board informed the applicant that it had received the applicant’s letter dated 26 November 2019 to apply for the withdrawal (“Withdrawal Application”) of his appeal/petition against the two decisions of the Director of Immigration (“Director”) respectively dated 22 December 2014 and 6 July 2017 (respectively “Director’s 1^st Decision” and “Director’s 2^nd Decision; collectively “Director’s Decisions”). In the Director’s 1^st Decision, the Director rejected the applicant's non-refoulement claim on all the applicable grounds [1] except the BOR 2 risk ground, which ground was later rejected in the Director’s 2^nd Decision. In the Board’s letter dated 8 January 2020, the Board directed (“Board’s Decision”) that the applicant’s appeal/petition against the Director’s Decisions was withdrawn, and that the Director’s Decisions remained. The Board’s Decision can be viewed at the following hyperlink: -

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2025/HCAL002099_2025_files/the_Board's_Decision.pdf

Amendments

2.  At the scheduled hearing of the Leave Application on 26 March 2026, the applicant appeared in person. Since the Form 86 did not refer to the Board’s Decision as the subject decision of the Leave Application, the court therefore allowed the applicant’s application to amend to refer to the Board’s Decision as the subject decision. Further, in the Form 86, the applicant named the Board as one of the interested parties in addition to it having been properly named as the proposed respondent. As only the Director should have been the proper putative interested party, the Form 86 shall be amended accordingly 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 a powerful political figure of the Pakistani People’s Party. 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.

Discussion

4.  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.

5.  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 contained no such grounds at all. In the supporting affirmation, the applicant alleged irrationality, procedural impropriety and unreasonableness.

6.  At the hearing, this court asked the applicant whether he wished to elaborate further on the grounds he has provided in his supporting affirmation. The applicant stated that he had nothing further to add.

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, after the Board had received the Withdrawal Application, on 12 October 2019, it wrote to the applicant to explain to him that the significance and impact of the Withdrawal Application and asked him to seek independent legal advice. The Board did not receive any reply. In the Board’s Decision, the Board stated that it was satisfied that the Withdrawal Application was freely sought, and that the applicant understood the consequences of the withdrawal. It also considered that there was good reason for the applicant to make the Withdrawal Application as the applicant considered it was safe for him to return home.

8.  It is established in the Court of Appeal in Hussain Tasawar v Betty Kwan (Adjudicator)[5] that the issue of whether an appeal to the Board has been validly withdrawn is a jurisdictional matter for the Board to determine.

9.  In Re Das Purnima Rani[6], the Court of Appeal held that:

“41. Once the Board dismisses an appeal against the Director's refusal of a non-refoulement claim upon a valid withdrawal or abandonment of the appeal by the claimant, in the sense of being the result of a deliberate and informed decision, the appeal is no longer extant and the Board becomes functus officio with no jurisdiction to take any step regarding the appeal. … a torture claim rejected by the Director is finally determined when the appeal against it, if one were lodged, was disposed of. Notwithstanding the lack of determination on the merits, the dismissal of an appeal on its withdrawal nevertheless disposed of the appeal. Otherwise, not only would there be no finality in the determination of such claims, much room would be created for abuse by claimants desirous of delaying their removal from Hong Kong by making last minute withdrawals and then subsequently applying for reinstatement of the appeals.

42. The only option left to the claimant who has validly withdrawn his appeal to the Board is to make a fresh non-refoulement claim under s 37ZO(2) ¹² if he can fulfil the requirements in sub-ss (a) and (b) thereunder.

43. On the other hand, where a withdrawal or abandonment is invalid, it would logically be a nullity and, as such, could and would have no effect on the appeal which remains extant so that the Board can and should resume processing the same upon the claimant's application. Quite apart from the nullifying effect of an invalid withdrawal/abandonment, this conclusion also appears to us to follow from applying the high standard of fairness required in handling non-refoulement claims.”

10.  Applying these principles, the applicant in the Leave Application has not contested the validity of the Withdrawal Application. Secondly, and more importantly, it appears that he made a deliberate and informed decision to withdraw his appeal against the Director’s Decisions. In his supporting affirmation he stated that in 2019, when he decided to withdraw the appeal against the Director’s Decisions because his family had informed him that the issue between his family and the enemy (the opposition party) had been compromised. It is therefore plain that the applicant had good reason to make the Withdrawal Application and it was made voluntarily. Any subsequent change of circumstances or change of mind would not invalidate the Withdrawal Application.

11.  The applicant has not raised any ground relating to the validity of the Withdrawal Application. The applicant has not provided any valid grounds, whether written or oral, in support of the Leave Application. 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[7].

Whether to grant extension of time

12.  In the present case, the Leave Application was late for more than 5 years. 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. A delay of more than 5 years is substantial.

13.  Although the applicant had appeared to have provided an explanation for the delay in the supporting affirmation, it was very confusing and unclear. At the hearing, the court therefore asked him for an explanation. The applicant stated that he had wanted to go back home. As a result, he had waited for 5 years for the Immigration Department to repatriate him. However, as the situation at his home country had become severe, he changed his mind and did not want to go home.

14.  I do not accept the explanation as I do not find his change of mind is good reason for the substantial delay. Having regard to the conclusion above that the intended challenge does not have any prospect of success, this court declines to exercise its discretion to grant an extension of time for the late filing of the Leave Application.

Orders

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

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

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