AKHTAR FAWAD v. TORTURE CLAIMS APPEAL BOARD

HCAL 2142/2020

[2026] HKCFI 3044

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2142 OF 2020

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 or counsel 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 decision in respect of which relief is sought be amended to “Torture Claims Appeal Board’s decision dated 9 October 2020”.

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 27 October 2020, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of two decisions described as follows:-

“(1) Notice of Decision make by the director of Immigration date on 22 July 2015 to 14 March 2018

(2) Decision make by Torture Claims Appeal Board/Non Refoulement Claims Petition office date on 24/1/2019 to 9 oct 2020”

2.  In fact, the applicant lodged his non-refoulement claim by way of written submissions on 22 July 2015 and 14 March 2018. The Director of Immigration (“the Director”) rejected the applicant’s non-refoulement claim by his decision dated 11 January 2019 (“the Director’s Decision”). The applicant lodged his Notice of Appeal/Petition against the Director’s Decision to the Torture Claims Appeal Board (“the Board”) on 24 January 2019.

3.  By its decision dated 9 October 2020 (the Board’s Decision”), the Board confirmed the Director’s Decision as it found that the applicant’s appeal/petition against the Director’s Decision failed on all the applicable grounds under the Unified Screening Mechanism.

4.  It is clear that the dates mentioned in first decision referred to by the applicant in Form 86 were the dates of his written submissions, and the dates mentioned in the second decision were the date when the applicant lodged his Notice of Appeal/Petition and the date of the Board’s Decision respectively. It is clear that the second decision was referring to the Board’s Decision.

5.  If the first decision was meant to be the Director’s Decision, the applicant cannot challenge it on judicial review, as the Director’s Decision was superseded by the Board’s Decision and is no longer susceptible to judicial review (see Re Moshsin Ali, [2018] HKCA 549). Thus, this court will only deal with the applicant’s application in respect of the Board’s Decision, which should be the only subject matter of the Leave Application.

Amendments

6.  In Form 86, the applicant named the Board / “Non Refoulm Claims Petition office” as the putative respondent, when only the Board should be the putative respondent.

7.  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.

8.  As aforesaid, the decision in respect of which relief is sought should be the Board’s Decision.

9.  Thus, on this court’s own motion, the name of the putative respondent is amended to “Torture Claims Appeal Board” and the decision in respect of which relief is sought is amended to “Torture Claims Appeal Board’s decision dated 9 October 2020”.

The applicant’s case

10.  The applicant claimed for non-refoulement protection because if refouled to Pakistan, he would be harmed or killed by Malik Riaz’s family and members of Pakistan Muslim League Nawaz.

Change of the applicant’s status

11.  By a letter dated 13 May 2026, the Director informed this court that the applicant’s application for entry for residence as a dependent in Hong Kong was approved by the Immigration Department on 3 June 2021.

12.  Although the applicant did not inform this court about his change of status, there is no reason why this court would not accept the Director’s information in this regard. Hence, this court accepts that the applicant is now permitted to stay in Hong Kong and the Director will not remove him from Hong Kong.

Discussion

13.  Since the applicant was granted stay in Hong Kong, it is no longer necessary for this court to consider the merits of the Leave Application. It is clear that the applicant no longer needs non-refoulement protection and the Leave Application serves no practical purpose.

14.  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).

15.  As it is otiose and pointless to grant leave to the applicant to proceed with the intended judicial review when he has already been granted stay in Hong Kong, this court will not grant any remedy to the applicant and hence the Leave Application ought to be dismissed.

Conclusion

16.  For reasons aforesaid, the Leave Application is 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