AHMAD ZAHOOR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

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

2.  There shall be no extension of time granted to the applicant to file the Leave Application out of time

3.  The application for leave to apply for judicial review be dismissed.

Background

1.  By a “Notice of application for leave to apply for judicial review” in the prescribed Form 86 filed on 28 December 2021, the applicant applied for leave to apply for judicial review (“Leave Application”).  The intended judicial review was against 2 decisions of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) respectively dated 12 January 2016 and 11 October 2019 (respectively “Board’s 1^st Decision” and Board’s 2^nd Decision). In the Board’s 1^st Decision, the Board dismissed the applicant’s appeal against a decision of the Director of Immigration (“Director”) dated 22 January 2015 (“Director’s 1^st Decision”) rejecting the applicant’s non-refoulement claim based on all applicable grounds apart from the ground of BOR 2 risk[1]. In the Board’s 2^nd Decision, the Board accepted the applicant’s application to withdraw the appeal against the Director’s Decision dated 28 September 2017 (“Director’s 2^nd Decision”) rejecting the applicant’s non-refoulement claim on BOR 2 risk ground. The Board’s 1^st Decision and the Board’s 2^nd Decision are set out in the following hyperlinks: -

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2021/HCAL001757_2021_files/1st_Board's_Decision.pdf

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2021/HCAL001757_2021_files/2nd_Board's_Decision.pdf

2.  In the Form 86, the applicant named the Director and the “Adjudicator” of the Board as the proposed respondents and did not name any interested party.  As the Director should have been the proper interested party, the Form 86 will be amended accordingly on the court’s own motion.  Further, in the Form 86, the applicant also included the Director’s 2^nd Decision as one of the subject decisions in respect of which relief was sought (in addition to the Board’s 1^st and 2^nd Decisions). Since the Board’s 2^nd Decision had already disposed of the Director’s 2^nd Decision, the applicant’s reference to the Director’s 2^nd Decision is procedurally erroneous. I shall therefore strike out from the Form 86, the reference to the Director’s 2^nd Decision. 

3.  The basis of the applicant’s claim was that, if refouled to Pakistan, he would be harmed or killed by a Mr Gulzar, who was well-connected with the Pakistan People’s Party, over the drawing of a boundary of a piece of farmland belonged to the applicant’s family.     The 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.  The applicant has requested for an oral hearing.  On 1 September 2025, the applicant filed an affirmation applying for the withdrawal of the Leave Application. He affirmed that he made the application for withdrawal out of his free will, that it was safe for him to return home and that he understood the consequences of the withdrawal.   In the circumstances, this court will dispose of the Leave Application on paper.

Discussion

5.  The Leave Application operates as a ‘filtering’ process and there is no requirement or expectation to give elaborate reasons for my decision.[2] 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[3], and further to make full and frank disclosure of all material facts to be verified by an affidavit.  The applicant’s Form 86 and the supporting affirmation contained no such grounds. 

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.[4] In the present case, in the Board’s 1^st Decision, the Board found that the applicant was not able to establish that he would face real risk of harm as it was found that the applicant’s past ill-treatment did not reach the requisite level of severity. The Board also independently found the applicant’s evidence lacked credibility. The Board also found that internal relocation was reasonably available. 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.  For the Board’s 2^nd Decision, the Board had given the applicant further time to seek independent legal advice upon its receipt of the applicant’s application to withdraw the appeal against the Director’s 2nd Decision.  When the Board had not received any reply from the applicant, the Board directed the withdrawal of the appeal upon having been satisfied that the withdrawal was freely sought and that he understood the consequences of the withdrawal.

9.  It is trite that the fact-finding role is exclusively vested with the Director and the Board, and not with his court. In the present case, upon the Board’s acceptance of the applicant’s withdrawal of the appeal against the Director 2^nd Decision, the applicant’s appeal was finally determined.  Hence, the applicant’s intended challenge to the Board’s 2^nd Decision is procedurally wrong. In any event, the applicant has advanced no grounds in stating what mistake the Board had made in accepting his withdrawal application.

10.  Bearing in mind the enhanced standard that should be adopted in scrutinizing the decision of the Board, this court is satisfied that the Board correctly applied the law relating to all the grounds and observed a very high standard of fairness.  The applicant has not shown any errors of law or procedural unfairness or irrationality in the Board’s Decision, nor were such grounds identified in the Form 86 or otherwise.  The applicant’s intended challenge to the Board’s 1^st and 2nd Decisions is not reasonably arguable with any realistic prospects of success such that would enable this court to grant leave[5].

11.  Additionally, the filing of the Leave Application against the Board’s 1^st Decision was late for about 4 years; and against the Board’s 2^nd Decision about 2 years. Both periods of delay were substantial.  The applicant had provided no explanation at all for the delay.  In the circumstances, having regard to the lack of merits, the court declines to grant an extension of time to the applicant.

Withdrawal application

12.  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.

Recent removal

13.  On 3 December 2025, before the applicant was removed, he signed a standard form memo to the court, stating that he “chose not to provide any correspondence address for communication with the court and service of court documents.”

Orders

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

15.  There shall be no extension of time granted to the applicant to file the Leave Application out of time.

16.  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