ZAHID MAHMOOD v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1974/2020

[2025] HKCFI 5612

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1974 OF 2020

Application for leave to apply for judicial review

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

Following:

1.   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 22 September 2020 and filed on 30 September 2020, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of a “Decision made by the Torture Claims Appeal Board / Non-refoulement Claims Petition Office dated 10^th June 2016 affirming the Notice of Decision made by the Director of Immigration dated 20^th November 2015”.

2.  However, there was no such decision made by the Torture Claims Appeal Board (“the Board”) on 10 June 2016 in respect of the applicant.  There was also no such decision made by the Director of Immigration (“the Director”) on 20 November 2015 in respect of the applicant.

Oral hearing

3.  The applicant requested for an oral hearing of the Leave Application. However, the applicant was absent at the hearing on 4 September 2025.  Thus, this court could not clarify with the applicant as to which decision in respect of which relief is sought.

4.  As held in Re Abdus Salam [2019] HKCA 1091, an application for leave to bring judicial review should not be dismissed for want of prosecution merely because the applicant failed to attend the oral hearing of the leave application.  The correct approach is to treat the applicant as having withdrawn the request for a hearing by reason of the absence at the hearing, and to proceed to determine the leave application on its merits.

5.  Thus, this court will proceed to consider the merits of the Leave Application based on the written materials before this court.

Grounds for judicial review

6.  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).

7.  The applicant stated in Form 86 under the heading “Grounds on which Relief is sought” the following:-

“Decision(s) made in respect of my Non-refoulement Claims states all the details of my claim. I would be able to provide a copy of the same to the court upon my release from the Immigration detention. I believe that the Director of Immigration and the Adjudicator of Appeal Board reached the decision wrongly in assessing my Non-refoulement Claims. The decisions were not reasonable and fair (as required by the Wednesbury test). Indeed, the right to life is protected under Article 28 of the Basic Law and Article 2 of the Bill of Rights. In practice, the right to life is mainly protected by the criminal law and it must be protected from extra-judicial killings that I may face if I am deported back to my country.

I humbly ask this Honorable Court to grant leave to have the Decision judicially reviewed.”

8.  In his supporting affirmation dated 22 September 2020, the applicant stated the following:-

“I am the applicant and I am not in possession of any of my document. However, I would be in position to submit rest of the documents upon my release.”

Discussion

9.  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).

10.  Although the applicant claimed in Form 86 that he could provide a copy of the decision(s) in respect of his non-refoulement claim upon his release from the Immigration detention, he never did.  He also never submitted any document upon his release as claimed in his supporting affirmation.  As aforesaid, the applicant was absent at the oral hearing on 4 September 2025.  Thus, there is no way for this court to find out which decision(s) he wanted to have leave to apply for judicial review.

11.  As both the Board’s decision and the Director’s decision as alleged in the applicant’s Form 86 are non-existent, there is simply no decision(s) for this court to scrutinize.  The applicant cannot apply for any relief in the Leave Application in respect of non-existent decision(s).

12.  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

13.  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

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