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

HCAL 776/2023

[2026] HKCFI 4421

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 776 of 2023

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and oral submissions by the Applicant in open court;

1.   Form 86 be amended on the court’s own motion as follows: -

a.   The Torture Claims Appeal Board / Non-Refoulement Claims Petition Office be named as the Putative Respondent; and

b.   The Director of Immigration be named as the Putative Interested Party.

2.   Extension of time to file the application for leave to apply for Judicial Review be refused.

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

Observations for the Applicant:

Introduction

1.  By Form 86 filed on 19 May 2023 (the “Form 86”), the Applicant sought leave to apply for judicial review (the “Leave Application”) against the decision of the Torture Claims Appeal Board / Non‑refoulement Claims Petition Office (the “Board”) dated 16 December 2021 (the “Board’s Decision”).

2.  As per usual practice that the Board should be the proposed respondent whereas the Director of Immigration (the “Director”) should be the proposed interested party, I make an order to amend the Form 86 accordingly on the court’s own motion.

3.  An oral hearing was requested by the Applicant. It took place before me on 20 July 2026 (the “Hearing”) and the Applicant attended in person.

Background

4.  The Applicant’s background, the basis of his claim and the arguments he advanced had been set out in details in the Board’s Decision.  The hyperlink to the Board’s Decision is included below[1] for reference. In summary, the Applicant came from Pakistan. He claimed that he will be killed by his uncle and his uncle’s sons (the “Adversaries”) if he were to return to Pakistan because of a land dispute involving the Applicant’s father and the Adversaries.

The Leave Application is out of time

5.  Pursuant to Order 53, rule 4(1) of the Rules of the High Court, Cap. 4A, the applicant has 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. The Form 86 was filed late for about 17 months.

6.  In AW v Director of Immigration and William Lam CACV 63/2015 (unreported, 3 November 2015), the Court of Appeal held that the following factors are relevant in determining whether to grant leave to file an application for leave to apply for judicial review out of time: (1) length of the delay; (2) explanation for the delay; (3) merits of the substantive application; (4) prejudice to the applicant if leave is refused vis-à-vis that to the respondent and public administration if leave is granted; and (5) whether the application raises any questions of general public importance, and whether those questions are likely to have to be resolved by the courts in any event.  Usually, the first three factors, particularly merits, are most crucial and determinative. If the sum total of these three factors are in Favor of grant of extension, the court could be more relaxed in the remaining two.  Conversely, if it is against the grant of extension, there is no need to consider the remaining two factors. 

7.  On any view, the period of delay in the present case is very serious. No explanation has been provided by the Applicant in his Form 86 and his affirmation in support. At the Hearing, the Applicant orally asked for a time extension when I told him that the Leave Application was out of time: -

(1)  I noted from the court file that a filing fee for the Form 86 was paid on 17 January 2022. The Applicant’s explanation was that he first went to the High Court registry to attempt to file a leave application for judicial review against the Board’s decision but could not do so because he did not have the requisite documents. He was only able to file the Leave Application on 19 May 2023.

(2)  The Applicant did not offer any explanation as to why he took over a year between January 2022 and May 2023 to collect the necessary documents, as the only document exhibited to his supporting affirmation for the Leave Application is the Board’s Decision. I also do not accept that ignorance of the relevant requirement to proceed expeditiously to be a valid justification, especially given the long period of delay.

(3)  Accordingly, I do not accept that the Applicant has a reasonable explanation for the delay.

8.  Further, where a Form 86 contains only general assertions without particulars as to underlying facts or matters upon which the Board’s Decision is said to be erroneous, such assertions are not effective grounds to support a judicial review, see: Re Haider Khalil [2021] HKCA 223 at §16. The Applicant has completely failed to advance any effective ground of review. He only expressed his general dissatisfaction with the Board’s Decision but without condescending to particulars as to how the Board is said to have erred.

9.  In my view, on account of the above, the Leave Application should be dismissed.

Merits

10.  For the sake of completeness, I have also reviewed the merits of the Board’s Decision. It is trite that determination of the merits of a non-refoulement claim is essentially within the remit of the Director and the Board, who are the primary decision-makers in the evaluation of the evidence based on the materials available to them.  A court will not usurp their primary decision-making role in a judicial review, which is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh in the absence of any legal error.  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: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

11.  At the Hearing, the Applicant confirmed that he had nothing else to add to his application.

12.  Having considered the Board’s Decision, I am not satisfied that there is any reasonably arguable ground to challenge the Board’s Decision, having regard to the following: -

(1)  The Board was entitled to reject the Applicant’s factual account as unreasonable and unbelievable, given that the Applicant’s inability to explain crucial matters such as the registered owner of the land in dispute and the evidence of land ownership by his father as alleged by the Applicant (§§54-55). Accordingly, there can be no real risk of harm if the Applicant returns to Pakistan (§62).

(2)  Having regard to relevant Country of Origin information and the personal circumstances of the Applicant, the Board was plainly correct to find that sufficient state protection and reasonable internal relocation alternatives are available to the Applicant as there was no credible evidence to support the Applicant’s bare assertion that the Adversaries would have the means and determination to pursue him throughout his home country (§§51, 65-66, 77-83).

13.  In the circumstances, I see no reason to grant a time extension.

Conclusion

14.  In the premises, I make an order that the Form 86 be amended as described above and the Leave Application be dismissed as it was made out of time.

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