MEHMOOD NASIR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1286/2020

[2025] HKCFI 4161

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1286 of 2020

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 is amended on the Court’s own motion, naming only the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office as the Putative Respondent, only the Director of Immigration as the Putative Interested Party, and by replacing “18-Nov 2018” with “15 November 2018”;

2.   Application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

Introduction

1.  The Applicant is from Pakistan.  By a Form 86 dated and filed on 24 June 2020 (“Form 86”), and a supporting affirmation also dated and filed on 24 June 2020 (“Affirmation”), he sought leave to apply for judicial review of a decision of the Torture Claims Appeal Board (“TCAB”) (which was also a decision of the Non-Refoulement Claims Petition Office (“NRCPO”)) dated 15 November 2018 (“TCAB Decision”)[1], which was exhibited to his Affirmation.

2.  The Applicant sought an oral hearing of his application.  At the hearing on 6 August 2025, he confirmed that the reference in the Form 86 to the TCAB Decision being dated 18 November 2018 was a typographical error, and that he only sought leave to apply for judicial review of the TCAB Decision. He made some other submissions which I address below.

3.  I have amended the Form 86 to properly identify the putative respondent and the putative interested party, as well as the correct date of the TCAB Decision. I will use the abbreviations and definitions from the TCAB Decision unless otherwise specified herein.

Background

4.  This is set out in the TCAB Decision. I will not repeat the contents thereof, but in summary:

a.  The Applicant claimed non-refoulement relief on the basis that if he were sent back to Pakistan he would be harmed or killed by Khurram and his accomplices;

b.  The claim was assessed on the grounds of Torture Risk[2], BOR 3 Risk[3], and Persecution Risk[4] and was rejected by the Director of Immigration (“Director”) in a decision dated 27 November 2015 (“Director’s Decision”). The Director also assessed his claim on the ground of BOR 2 Risk[5] and rejected such in a further decision dated 27 June 2017 (“Director’s Further Decision”);

c.  As the Applicant had petitioned/appealed to the TCAB/NRCPO, a hearing was held in relation to all of the Applicant’s non-refoulement claims on 9 July 2018; and

d.  The TCAB/NRCPO handed down the TCAB Decision on 15 November 2018 in which it dismissed the Applicant’s appeal/petition and confirmed the Director’s Decision.

Legal Principles

5.  An applicant, even one acting in person, is required to identify the grounds of judicial review clearly and succinctly in the Form 86, and to fully and frankly disclose all material facts and potential legal answers (Ho Loy & Another v Director of Environmental Protection, unrep.  HCAL 21/2015, 22 December 2016, Chow J. (as he was then) at §142; Leung Kwok Hung, unrep., HCAL 83/2012, 28 September 2013, Lam J. (as he was then) at §35; Begum Khadija [2018] HKCA 571; Khan Kamran [2020] HKCA 380).

6.  It is trite that the role of the Court in a judicial review is not to provide a further avenue of appeal, and that the Court should not usurp the role of the TCAB/NRCPO which is (and together with the Director are) the primary decision‑makers.  The assessment of evidence, COI materials, and credibility, risk of harm, state protection and viability of internal relocation are primarily within the province of the TCAB/NRCPO and the Director, which are entitled to make evaluations based on the evidence available and to decide the weight to be given to them.  While 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 will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the TCAB/NRCPO.  (Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; Nupur Mst v Director of Immigration [2018] HKCA 524; Re Kartini [2019] HKCA 1022; Re Rupinder Singh [2021] HKCA 886).

7.  In order for me to give leave for judicial review, I have to be satisfied that there is an intended ground of review which is reasonably arguable, which is one that enjoys a realistic prospect of success (Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676).  As a leave application of this sort is meant to be a filtering process, I am not expected to give elaborate reasons for my decision (see Re Zunariyah [2018] HKCA 14, at §23).

8.  Given RHC O. 53 r. 4(1) and s. 21K(6) High Court Ordinance (CAP. 4A),where an Applicant applies for leave to apply for judicial review more than 3 months after the decision:

a.  The failure to apply within 3 months constitutes “undue delay”. To justify an extension of time in which to apply for leave, the Applicant must show “good reason” to extend time. In deciding this, certain factors that are likely to be significant are (i) the length of the delay (ii) the explanation for the delay[6] (iii) the merits of the substantive application[7] (iv) prejudice, and (v) whether the application raises questions of general public importance;

b.  Where the court considers that there is no good reason for extending the period, it will refuse leave to apply for judicial review. The refusal of an extension of time is part and parcel of a refusal to grant leave to apply. It is not the case that the court refuses the extension of time as a discrete decision and then makes no decision on the question of leave to apply for judicial review, treating this as a separate matter entirely;

c.  If the court is satisfied that there is good reason for extending the period, it does not follow that leave to apply for judicial review will automatically be given. While the court might grant leave, it retains a discretion to refuse to do so and the existence of a good reason for undue delay is only one facet of the question, others including sufficiency of interest and the need to satisfy the arguability test. Leave may also be refused on the basis that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration; and

d.  Even if leave to apply is granted, the issue of undue delay on the part of the applicant may be raised again at the substantive hearing of the judicial review application. That is a separate consideration of whether relief should be refused on the basis that the court thinks that relief would be likely to cause substantial hardship or prejudice to the rights of another or be detrimental to good administration.

See AW v Director of Immigration & anor. [2016] 2 HKC 393 (CA) (at §§23 to 36), Thomas Lai [2014] 6 HKC 1 (at §§43 to 45 as also cited in AW, supra), and H v Director of Immigration (2020) 23 HKCFAR 248 at §§17-22, 36-44 citing inter alia both AW and Thomas Lai.  See also Re Hariatiningsih [2021] HKCFI 1194 at §§12-13, 16-19 citing the aforesaid, upheld in [2022] HKCA 1321.

Discussion

9.  The application was filed more than 3 months after the decision. I do not see any good reason on the papers, and in the circumstances, to extend time for the Applicant’s application for leave to apply for judicial review. I therefore refuse to grant such an extension of time, and dismiss the application for leave to apply for judicial review. This is for the following reasons.

10.  Dealing, firstly, with the merits of the substantive application, the Form 86 and the Affirmation do not identify any grounds of judicial review. There are hence no allegations of procedural unfairness in relation to, and/or of any error of law in, and/or any irrationality/failure to meet the enhanced Wednesbury test in, the NRCPO Decision.

11.  Nevertheless, given the seriousness of the issues at hand, I have in relation to the question of merits of the substantive application considered the TCAB Decision with rigorous examination and anxious scrutiny, applying the enhanced Wednesbury standard and bearing in mind the need for a high standard of fairness.

12.  The TCAB/NRCPO set out the Applicant’s procedural and immigration history before going into the detail of the Applicant’s case and the evidence adduced before it (Paragraphs 1 to 44). It then had regard to the evidence and concluded, for detailed reasons given therein, that politics had nothing to do with the facts of the Applicant’s claim and references thereto were just attempts by him to colour his claim and support his version of the story, that the Applicant’s evidence was highly unreliable and he had not been truthful with the events leading to his claim, such that his version of the story and his evidence, judged in the round, were unreliable and untruthful[8], and that there was no real threat faced by the Applicant who was not subject to a real risk of harm from Khurram and his accomplices were the Applicant to be refouled. There was also no evidence that police protection was unavailable, while given his circumstances he could relocate safely to Lahore or Karachi (Paragraphs 45 to 74).

13.  The decision-maker then concluded that none of the four types of risk were made out, and in each case referred to relevant findings and matters from the previous section. He hence dismissed the appeal/petition and confirmed the Director’s Decision (Paragraphs 75 to 95)

14.  I do not, from my examination and scrutiny, see that the Applicant has any reasonably arguable case that there was procedural unfairness (bearing in mind the need for a high standard of fairness), an error of law, and/or irrationality/failure to meet the enhanced Wednesbury test that is sufficient to vitiate the TCAB Decision.  This is especially so as to the assessment, reasoning, and findings regarding the evidence and credibility, risk of harm, state protection, internal relocation, which are all matters primarily within the province of the decision-making body, and hence as to Torture Risk, Persecution Risk, BOR 3 Risk, and BOR 2 Risk.

15.  At the hearing the Applicant told me that his enemy in Pakistan was now in the ruling party now and “I only need some time”. I do not see how these bare and unsubstantiated allegations are relevant to or assist the application in any way, given the findings in and my analysis of the TCAB Decision, and the nature and purpose of judicial review proceedings. For the sake of completeness, I record that while he initially claimed that some documents had not been submitted to the Director, he agreed (after Paragraph 45 of the TCAB Decision had been interpreted to him) that the documents in question had been submitted to and were before the TCAB/NRCPO.

16.  There is hence no basis for the court to intervene by way of judicial review, and I am not satisfied that there are any reasonably arguable grounds for judicial review which enjoy a realistic prospect of success.

17.  Secondly, there is undue delay in this case as the leave application was filed over 2 years and 4 months out of time. Despite this, there was no request for an extension of time to make the application in the Form 86, and no explanation has been given for the undue delay notwithstanding the Applicant’s duty of full and frank disclosure as mentioned above.  I add that even if I have erred in my conclusions on the merits, I would still refuse to grant an extension of time and leave to apply for judicial review given the substantial and unexplained delay in this case.

18.  Thirdly, I do not see any question of general public importance raised by the application which is likely to be resolved by the courts in any event.  Given the lack of any reasonably arguable grounds, I also see no prejudice to the Applicant if the application were not allowed to proceed, whereas allowing it to proceed would clearly be to the detriment of public administration and would needlessly prejudice the putative Respondent.

Conclusion

19.  In the circumstances I have ordered that the application for leave to apply for judicial review be dismissed and made the other orders above.

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