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BETWEEN
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Khan Zahid Ali |
Applicant |
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and |
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Torture Claims Appeal Board |
Putative |
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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 (Order 53, rule 3)
Following:
Order by Deputy High Court Judge Michael WONG:
1. On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board”.
2. The applicant’s application for leave to withdraw the application for leave to apply for judicial review be refused.
3. The applicant’s application for leave to apply for judicial review be dismissed.
Observations for the applicant:
The Leave Application
1. By way of Form 86 dated 3 October 2025 and filed on 17 October 2025, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board (“the Board”) dated 5 September 2024 (“the Board’s Decision”).
2. The Board found that the applicant’s non-refoulement claim was not established on all the applicable grounds under the Unified Screening Mechanism. Hence, the Board dismissed the applicant’s appeal/petition against decision of the Director of Immigration (“the Director”) dated 15 April 2024 and confirmed the same.
Amendment
3. The applicant named “Torture Claims Appeal Board/ Non-refoulement Claims Petition Office” as the putative respondent in Form 86, when only the Board should be so named.
4. The Non-refoulement Claims Petition Office is just an office providing administrative and secretariat support to the adjudicators of the Board and should not be named as a putative respondent at all.
5. Thus, this court makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board”.
The applicant’s case
6. The applicant claimed for non-refoulement protection because if refouled to Pakistan, he would be killed by his cousin due to animosity.
Late application
7. By virtue of Order 53, rule 4(1) of the Rules of the High Court, Cap 4A, the applicant had 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.
8. However, the applicant filed Form 86 on 17 October 2025, which was more than 13 months after the Board’s Decision (made on 5 September 2024). The applicant was hence late for more than 10 months in making the Leave Application, and this court has to consider whether there is any good reason to extend the time for the applicant to make the Leave Application.
9. As held in AW v Director of Immigration [2016] 2 HKC 393, the criteria for granting an extension of time are:
(i) the length of the delay;
(ii) the reason for the delay;
(iii) the merits of the intended application; and
(iv) any prejudice to the putative respondent and to public administration.
10. The applicant did not make any application for extension of time and provided no explanation for the delay in making the Leave Application. At the oral hearing before this court on 13 January 2026, the applicant did not explain the delay but applied for withdrawal of the Leave Application instead.
11. Thus, there is simply no reason for this court to grant any extension of time to the applicant to file the Leave Application, even if an application for extension of time was made. The Leave Application can therefore be dismissed on the ground of being made out of time alone.
Withdrawal of the Leave Application at the oral hearing
12. At the oral hearing before this court on 13 January 2026, the applicant applied to withdraw the Leave Application. He said that he received a message from his family a week ago that his problem in his country had been resolved and he would be safe to go back to his country.
13. Moreover, on 30 January 2026, the Director informed this court that the applicant had written a letter dated 12 January 2026 to withdraw the Leave Application. In the applicant’s said letter, the applicant stated that his issues in his home country had been resolved and he could return home.
14. There is no evidence to show that the applicant made the above withdrawal application other than out of his own volition. With the withdrawal application, it is clear that the applicant no longer wishes to proceed with the Leave Application.
15. However, the Court of Appeal had held in Re Manik Md Mahamudun Nabi [2022] HKCA 471 that:-
“The applicant on his own motion applied to the Court to withdraw his application for leave to apply for judicial review. The Judge acceded to his application, whereupon there was nothing outstanding in the action. The Judge was correct to conclude the action by ordering a dismissal of the application instead of leaving the action at large.”
16. Thus, it is not right to leave the action at large by granting leave to withdraw to the applicant. This court will proceed to deal with the Leave Application.
Discussion
17. It is not necessary for this court to discuss the merits of the intended judicial review any more, as the applicant had confirmed that it is safe for him to return to his country now. In other words, the basis of his non-refoulement claim no longer exists.
18. It is clear that the applicant no longer needs non-refoulement protection and the intended judicial review serves no practical purpose.
19. It is well established that the court may exercise discretion not to grant a remedy on judicial review if it would serve no practical purpose, where it may have become otiose or pointless to grant a remedy because the relevant detriment to the applicant has been removed (see AW v Director of Immigration and William Lam, CACV 63 of 2015).
20. Thus, the Leave Application ought to be dismissed.
Conclusion
21. For reasons aforesaid, the application to withdraw the Leave Application is refused and the Leave Application is dismissed.
Dated the 4th day of February 2026
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( Irene LEE )
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/Handed to the applicant/the applicant’s solicitors on:
4 February 2026
Applicant’s ref. no:
Nil |
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Sent/Handed 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: 4 February 2026
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 23464
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 219/24
(formerly RBCZ/5000172/24)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1