ALI GHAZANFAR v. TORTURE CLAIMS APPEAL BOARD

HCAL 342/2021

[2026] HKCFI 535

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 342 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 andoral 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”, the name of the putative interested party be amended to “Director of Immigration”, and the decision in respect of which relief is sought be amended to “Torture Claims Appeal Board’s decision dated 14 October 2020”.

2.      The applicant’s application to withdraw the application for leave to apply for judicial review be refused.

3.      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 15 March 2021, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of a decision which was described as follows:

“Decision by Appeal Board – Date= 18-12-2018”

2.  The Torture Claims Appeal Board (“the Board”) made a decision dated 14 October 2020 (“the Board’s Decision”) regarding the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 18 December 2018 (“the Director’s Decision”).  At the oral hearing before this court on 15 January 2026, the applicant confirmed that the Board’s Decision instead of the Director’s Decision should be the subject matter of the Leave Application.  The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2021/HCAL000342_2021_files/the_Board's_Decision.pdf

3.  The Board found that the applicant failed to make out his claim for non-refoulement protection on all the applicable grounds under the Unified Screening Mechanism. Hence, the Board rejected the applicant’s appeal/petition and confirmed the Director’s Decision, which rejected the applicant’s non-refoulement claim.

Amendments

4.  In Form 86, the applicant named the Board as both the putative respondent and the putative interested party, but spelt the name of the Board wrong.  Also, the Director should be the putative interested party, not the Board.

5.  As aforesaid, the decision in respect of which relief is sought should be the Board’s Decision, not the Director’s Decision.

6.  This court therefore makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board”, the name of the putative interested party to “Director of Immigration”, and the decision in respect of which relief is sought to “Torture Claims Appeal Board’s decision dated 14 October 2020”.

Late application

7.  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.

8.  However, the applicant filed Form 86 on 15 March 2021, which was more than 5 months after the Board’s Decision (made on 14 October 2020).  The applicant was hence late for more than 2 months 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.

9.  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.

10.  The applicant did not make any application for extension of time and provided no explanation for the delay when he filed the Leave Application.  At the oral hearing before this court on 15 January 2026, the applicant explained that he was in hospital for 3 days to have an operation due to his heart problem at that time and thereafter he did not pay attention to this matter.  However, he could not remember the exact dates when he was hospitalized.

11.  The explanation given by the applicant is not satisfactory as he was only hospitalized for 3 days.  It is clear that the main reason for not filing the Leave Application on time was because he did not pay attention to this matter, which cannot be an excuse.  In any event, as the applicant applied to withdraw the Leave Application at the oral hearing as discussed below, it is not necessary for this court to extend the time for the applicant to file the Leave Application.

12.  Thus, the Leave Application can be dismissed for being made out of time alone. 

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 if refouled to Pakistan, his life would be in danger from members of the Pakistan Muslim League (Nawaz).

Withdrawal of the Leave Application at the oral hearing

15.  At the oral hearing before this court on 15 January 2026, apart from explaining the reasons for the delay in making the application, the applicant also confirmed that he wanted to withdraw the Leave Application as he wanted to go back to Pakistan and he would be safe by relocating to live in another city in Pakistan upon his return.

16.  There is no evidence to show that the applicant made the above withdrawal application other than out of his own volition.  With the withdrawal application, it is clear that the applicant no longer wishes to proceed with the Leave Application.

17.  However, the Court of Appeal had held in Re Manik Md Mahamudun Nabi [2022] HKCA 471 that:-

“The applicant on his own motion applied to the Court to withdraw his application for leave to apply for judicial review. The Judge acceded to his application, whereupon there was nothing outstanding in the action. The Judge was correct to conclude the action by ordering a dismissal of the application instead of leaving the action at large.”

18.  Thus, it is not right to leave the action at large by granting leave to withdraw to the applicant.  This court will proceed to deal with the Leave Application.

Discussion

19.  It is not necessary for this court to discuss the merits of the intended judicial review any more, as the applicant had confirmed that he could return to his country safely by relocating to live in another city in Pakistan, which was also the Board’s finding.

20.  It is clear that the applicant no longer needs non-refoulement protection and the intended judicial review serves no practical purpose.

21.  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).

22.  It is therefore otiose and pointless to grant leave to the applicant to proceed with the intended judicial review even if there were merits in it. Thus, the Leave Application ought to be dismissed.

Conclusion

23.  For reasons aforesaid, the applicant’s application to withdraw the Leave Application is refused and 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