MEHMOOD TARIQ v. TORTURE CLAIMS APPEAL BOARD

HCAL 325/2021

[2026] HKCFI 538

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 325 OF 2021

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

	consideration of the documents only; or
	consideration of the documents and oral submissions by the applicant in open court;

1.  On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board” and the name of the putative interested party be amended to “Director of Immigration”.

2.  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 and filed on 10 March 2021, 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 4 December 2020 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2021/HCAL000325_2021_files/the_Board's_Decision.pdf

2.  The Board found that the applicant’s claim for non-refoulement protection failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board affirmed the decision of the Director of Immigration (“the Director”) dated 29 November 2019, which rejected his non-refoulement claim.

Amendments

3.  The applicant named the Board and Immigration Department as both the putative respondents and the putative interested parties in Form 86.

4.  In fact, only the Board should be named as the putative respondent, and the Director should be named as the putative interested party.

5.  Thus, this court makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board” and the name of the putative interested party to “Director of Immigration”.

Late application

6.  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.

7.  However, the applicant filed Form 86 on 10 March 2021, which was 3 months and 6 days after the Board’s Decision (made on 4 December 2020). The applicant was hence late for 6 days 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.

8.  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.

9.  The applicant did not apply for any extension of time to file the Leave Application and did not provide any reasons for the delay when the application was made.

10.  At the oral hearing before this court on 6 January 2026, when this court asked the applicant for the reason of his delay, he first said that he was sick. However, he could not tell this court when he was sick. He then said that he was not aware that there was a time limit to make the application.

11.  Although a delay of 6 days is not substantial, the explanation given by the applicant is not satisfactory. Ignorance of the court’s procedures is generally not an excuse. More importantly, as discussed below, there is no merits of the intended judicial review at all. Thus, this court is not prepared to extend the time for the applicant to file the Leave Application even if an application for extension of time was made. The Leave Application can be dismissed on the ground of being made out of time alone.

12.  However, for the sake of completeness, this court will still examine the merits of the Leave Application.

The applicant’s case

13.  It is not necessary for this court to repeat the details of the applicant’s case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above.

14.  In sum, the applicant claimed for non-refoulement protection because he feared that if refouled to Pakistan, he would be harmed or killed by JHANGIR Khanzada (“JK”) and/or his men, including one called Arshad, of the Pakistan Muslim League Nawaz (“PML(N)”), due to his support for their rival party namely Pakistan Tehreek-e-Insaf (“PTI”).

Oral hearing

15.  The applicant requested for an oral hearing of the Leave Application and his case was heard on 6 January 2026.

16.  When this court asked the applicant for the grounds of his intended judicial review, he merely replied that he still had problems in Pakistan due to political dispute as they were in power.

Grounds for judicial review

17.  The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).

18.  The applicant did not advance any grounds for his intended judicial review in Form 86. In his supporting affirmation dated 10 March 2021, he merely stated that he would like to reject and review the Board’s Decision as they disregarded his dangerous situation.

19.  What the applicant said at the oral hearing did not amount to any grounds for judicial review either.

Discussion

20.  First of all, the applicant’s situation and his alleged danger had been considered by the Board. If the applicant intends to challenge the Board’s finding of facts, it is not permissible in a judicial review.

21.  The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision and intervene by way of judicial review only for errors of law, procedural unfairness or irrationality (see Nupur Mst v Director of Immigration [2018] HKCA 524).

22.  Thus, this court will examine and scrutinize the Board’s Decision for any errors of law, procedural unfairness and irrationality, despite the lack of any valid ground being advanced by the applicant for the intended judicial review.

23.  In assessing the appeal by the applicant, the Board held an oral hearing on 28 October 2020 and the applicant was present. Thus, the applicant was given the opportunity to present his case to the Board in person.

24.  The Board noted that the applicant produced no supporting documentation. The applicant had only made bare assertions whose reliability and authenticity could not be tested, and he presented no objective proof to support them.

25.  The Board found that the injuries the applicant sustained as a result of the attacks were not serious and did not reach a minimum level of severity. Given the number of attackers and the weapons they were armed with, they could have done serious harm or even kill the applicant during the attacks, but they did not do so. This indicated that JK and his men had no real intention to seriously harm or kill the applicant. The dispute between the applicant and JK and his men, including Arshad, was localized. The applicant was unharmed and unfound by JK when he moved to Karachi for a few months and Rawalpindi for a year. There was no evidence to show what JK and his men had done was representing PML(N) as a whole or the Pakistani Government. The dispute was only private in nature. The applicant was able to reach a compromise with JK twice, after the first two attacks.

26.  The Board also noted that PML(N) lost power in the July 2018 elections. PTI, the party which the applicant supported, was the single largest party in the new government and also the largest party in Punjab. The fact that PML(N) had been swept from power and that PTI became the largest party in government further reduced the risk of the applicant being harmed or killed should he return. It also meant that if the applicant notified the authorities of his fears, he would likely be afforded protection. The Board had also gone through very extensive country of origin information (“COI”) and concluded that reasonable state protection was available to the applicant upon his return.

27.  The Board found that the applicant had stayed in Karachi and Rawalpindi before his departure from Pakistan and remained unharmed, PML(N) had lost its power and freedom of movement was allowed in Pakistan. Thus, the Board considered that the applicant, being able-bodied with 5 years of education and 21 years of work experience as a farmer, taxi-driver and truck helper, could relocate and find suitable employment to maintain himself in other areas of Pakistan and avoid those who might wish to harm him.

28.  The Board concluded that the applicant did not face a real risk of being subjected to any of the proscribed forms of harm under the USM.

29.  The assessment of evidence, COI and risk of harm was primarily within the realm of the Board. The Board was entitled to come to its own conclusion. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.

30.  Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM, the burden of proof and the standard of proof. The Board also correctly identified the issues and observed a very high standard of fairness. This court could detect no errors of law, procedural unfairness or irrationality in the Board’s Decision. The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision.

31.  As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, for the court to grant leave to apply for judicial review, the claim has to be a reasonably arguable claim which enjoys realistic prospects of success. It is the view of this court that the applicant has failed to establish such a claim and hence leave must be refused.

Conclusion

32.  For reasons aforesaid, the Leave Application is dismissed for being made out of time and also for lack of merits.

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