NAJAM SHERAZ v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1431/2021

[2026] HKCFI 2035

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1431 of 2021

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.

Observations for the Applicant:

Introduction

1.  By a “Notice of application for leave to apply for judicial review” in the prescribed Form 86 filed on 15 October 2021, the applicant applied for leave to apply for judicial review (“Leave Application”). The intended judicial review was against the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) dated 13 August 2021 (“Board’s Decision”) dismissing the applicant's appeal against the decision of the Director of Immigration (“Director”) dated 3 August 2018 (“Director’s Decision”) rejecting the applicant's non-refoulement claim on all applicable grounds[1] except the risk torture ground which had been previously dismissed by the Director on 19 October 2012. The Board’s Decision can be viewed at the following hyperlink: -

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2021/HCAL001431_2021_files/the_Board's_Decision.pdf

2.  In his Form 86, the applicant named the Director as the proposed respondent. As the Board should have been the proper respondent, 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 (i) the police authorities and Mr Haji Nazir over a criminal case against his stepfather; (ii) his stepfather if he acted as a prosecution witness to testify against him; and (iii) his grandparents’ family and Aisha’s family both of which accused him of having committed adulty with Aisha. 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.

4.  At the applicant’s request for a hearing of the Leave Application, this court scheduled a hearing on 26 March 2026. The applicant attended the hearing in person. The applicant informed the court that he wished to withdraw the Leave Application as he had been in prison for more than 15 months in Hong Kong, and he wished to go home. He confirmed under oath that he was making the withdrawal application voluntarily and understood the consequences of the withdrawal.

Discussion

5.  The Leave Application operates as a ‘filtering’ process and there is no requirement or expectation to give elaborate reasons for my decision. It is sufficient to state my observations after considering the Board’s Decision and the applicant’s materials adduced.

6.  In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly, 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 7-page handwritten letter attached to the supporting affirmation, the applicant largely elaborated the facts of his case in greater detail and added supplemental information.

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. In the present case, the applicant was legally represented at the hearing before the Board. He gave evidence and answered questions from the lawyer representing the Director as well as from the Board. After having considered the submissions from both parties, and the relevant COI, the Board found that the various strands of risks the applicant asserted were not convincing and full of inconsistencies. These are findings of fact, which the court in a judicial review will not interfere with, subject to there being any public law errors.

8.  Bearing in mind the enhanced standard that should be adopted in scrutinizing the Board’s Decision, this court is satisfied that the Board correctly applied the law relating to all the grounds and observed a high standard of fairness. The applicant’s grounds stated in the letter exhibited to his supporting affirmation were convoluted and vague. 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.

Withdrawal application

9.  Apart from the application to withdraw the Leave Application referred to above, there is nothing outstanding in this action. In the circumstances, I make an order to dismiss the Leave Application, and hereby order the dismissal of the Leave Application: see Re Manik Md Mahamudun Nabi [2022] HKCA 471; Ngo Xuan Tuyen v Torture Claims Appeal Board [2024] HKCA 1140.

Orders

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

11.  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