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

HCAL 841/2020

[2025] HKCFI 3306

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 841 of 2020

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

Following;

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

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

Observations for the Applicant:

1.  By a Form 86 filed on 7 May 2020 (“Form 86”), the Applicant sought leave for judicial review of the decision of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (“TCAB”) made on 27 April 2020 (“the TCAB Decision”). A copy of the TCAB Decision can be viewed by the following hyperlink[1].

2.  The TCAB Decision was made pursuant to a petition/appeal from a decision of the Director of Immigration (“DI”) dated 30 October 2018 (“the DI Decision”).

3.  The Applicant has failed to identify any alleged errors of law, irrationality or procedural unfairness on the part of the TCAB in reaching the TCAB Decision to make good his challenge, either in the Form 86 or the supporting affirmation.

4.  The Applicant is a Pakistani national. He claimed to be the supporter of a political party called the Pakistan Tehreek-e-Inshaf (“PTI”). The Applicant’s non-refoulement claim was based on an alleged risk of being ill-treated or killed by Mr Bhatti as a result of the Applicant’s refusal to join another political party called the Pakistan Muslim League (“PMLN”).

5.  In the oral hearing, the Applicant sought to adduce new evidence in support of his claim. The Applicant produced (i) 3 photographs sent by the Applicant’s brother to him, which were said to be taken in May or June 2025 by unknown person(s) on an unknown occasion (“the Photographs”); (ii) a document in English said to be the profile of Mr Bhatti downloaded from Google, stating that he has been a member of the Parliament since 2024 (“Mr Bhatti’s Profile”) and (iii) a document in Urdu said to be the First Information Report (“FIR”) of a case Mr Bhatti lodged against the Applicant in 2014 (“the 2014 FIR”). The Photographs, Mr Bhatti’s Profile, and the 2014 FIR are not part of the documentary evidence available to the TCAB before the TCAB Decision was made. The Applicant said he does not remember if he had ever mentioned the 2014 FIR to the TCAB.

6.  The Applicant said there is a further FIR of a case Mr Bhatti lodged against the Applicant’s brother in a more recent year (“the FIR against the Applicant’s Brother”), but no copy was available at the oral hearing.

7.  In the oral hearing, the Court reserved the decision on whether the Applicant is allowed to adduce such fresh evidence. The Court directed the Applicant to submit to the Court, within 7 days, the English Translation (if available) of the 2014 FIR and the FIR against the Applicant’s brother. By an undated letter which was received by this Court on 9 July 2025, the Applicant attached 2 English documents said to be the certified English translation of their Urdu originals, and these two documents resembled the 2014 FIR and the FIR against the Applicant’s Brother mentioned by the Applicant during the hearing. The latter was dated 9 September 2021.

8.  As pointed out by the Court of Appeal in Dr. Kwok Hay Kwong v The Medical Council of Hong Kong [2007] HKCU 962; [2007] 3 HKLRD 213 at 219, the conditions in Ladd v Marshall [1954] 1 WLR 1489 on the admission of fresh evidence on appeal are equally applicable to judicial review. The three criteria to justify reception of fresh are: (a) that the evidence could not have been obtained with reasonable diligence for use at the hearing; (b) the evidence was such that it would probably have an important influence on the result of the case; and (c) the evidence must be apparently credible, though it need not be incontrovertible.

9.  In the more recent case of KV (Sri Lanka) v Secretary of State for the Home Department [2018] EWCA Civ 2483, the Court of Appeal confirmed the above criteria in asylum cases, and commented that in public law cases these principles remain to be the starting point. There is however a discretion to depart from them in exceptional circumstances if the wider interests of justice so require.

The 2014 FIR

10.  The Applicant gave no plausible explanation, in his affirmation, oral submissions in Court or the letter to the Court, as to why he could not obtain a copy of the 2014 FIR for use in the TCAB hearing or an earlier stage. The 2014 FIR is apparently about a criminal complaint lodged against the Applicant in 2014, more than 5 years before the TCAB hearing. In the oral hearing before this Court, the Applicant simply said he received the 2014 FIR at a stage later than the TCAB hearing and did not know how to submit it.

11.  It is noted that the Applicant was legally represented in the tier-one process of his non-refoulement claim before the DI’s first decision. If the existence of the 2014 FIR had been mentioned to his then legal representative and was considered important, his then legal representative could assist the Applicant in seeking more time for the Applicant to obtain the document from his relatives in Pakistan before the screening interview or the DI Decision was made. Although the Applicant was not legally represented in the proceedings before the TCAB, he still had every right to submit documentary evidence as the TCAB dealt with the appeal/petition by way of a de novo hearing.

12.  The existence of the 2014 FIR or a criminal complaint against the Applicant was not mentioned in the DI Decision or the TCAB Decision at all. To the contrary, he informed the DI, probably by way of his non-refoulement claim form, that he had never been accused, charged or interrogated etc. in Pakistan: see §6.24 of the DI Decision.

13.  Mr Bhatti was not mentioned on the face of the English translation of the 2014 FIR. It is unclear how was he connected to the making of this criminal complaint against the Applicant.

14.  I am not satisfied that the 2014 FIR has met any single criterion of the Ladd v Marshall test, not to mention the Applicant needs to satisfy all of them.

The Photographs, Mr Bhatti’s Profile and the FIR against the Applicant’s Brother

15.  The Photographs, Mr Bhatti’s Profile and the FIR against the Applicant’s Brother referred to events taking place after the date of the TCAB hearing (i.e. 5 December 2019), and thus could not have been obtained with reasonable diligence for use at the TCAB hearing. However, I cannot see how the evidence would have an important influence on the result of the case.

16.  The Photographs produced only showed that a man, whom the Applicant alleged to be Mr Bhatti, was surrounded by several unknown persons on an unknown occasion. Other than the Applicant’s bare assertion, nothing from the Photographs showed that this person alleged to be Mr Bhatti would threaten other people or inflict any risk of ill-treatment as alleged by the Applicant. The Photographs demonstrated nothing about the claimed dispute between the Applicant and Mr Bhatti.

17.  Mr Bhatti’s Profile indicated that he became a member of the Parliament in or around 2024. The Applicant submitted that it shows Mr Bhatti has become more powerful. There is no direct relationship between Mr Bhatti’s elevation of his political profile and the risks faced by the Applicant. Even if it is relevant, it is of very marginal relevance.

18.  The Applicant also said that after he left Pakistan, the FIR against the Applicant’s Brother was lodged because the Applicant had refused to return. However, nothing on the document’s face shows any connection between this allegation and the Applicant’s situation.

19.  The Photographs, Mr Bhatti’s Profile and the FIR against the Applicant’s Brother would not have any important influence on the result of the case. They are not allowed to be adduced as new evidence against the TCAB Decision in this application for leave to apply for judicial review.

20.  More importantly, the role of this Court is to review the legality of the TCAB Decision but not to adjudge the Applicant’s non-refoulement claim afresh or any “subsequent claim” of his. If the Applicant intends to argue that the fresh evidence demonstrates a significant change of circumstances in his home country since the determination of his non-refoulement claim (by the TCAB Decision) which shows that his risk of being harmed/killed to have been heightened, the Applicant should proceed by way of a different procedure, e.g. the procedure under section 37ZO(2)-(5) of the Immigration Ordinance (Cap. 115).

21.  I have reviewed the TCAB Decision vigorously. In my judgment, the TCAB Decision was supported by factual findings and the TCAB had conducted an anxious scrutiny of the available evidence and information. The TCAB did not regard any of the Applicant’s factual claim beyond his nationality credible, and rejected his political involvement in the PTI even at the lowest possible level. The TCAB found that had failed to provide any details on his alleged political difficulties and offered no explanations to the inconsistencies of events that were the core of his account. Having rejected the Applicant’s case, he had no factual basis for his claim. It was on such basis that the TCAB found that the Applicant had not established substantial grounds that he would face a real risk of ill-treatment, torture, persecution or violation of his rights under the Hong Kong Bill of Rights if he returned to his home country. I do not detect any error on the TCAB’s part in this regard.

22.  It has been reiterated time and again that the primary responsibility for the factual assessment of whether any risk of ill-treatment exists lies with the TCAB. In the absence of any errors of law, procedural unfairness or irrationality, the Court would not reopen TCAB’s findings or make a determination on the case afresh. The role of the Court in a judicial review is not to provide a further avenue of appeal (see Re Lakhwinder Singh [2018] HKCA 246).

23.  The leave application to apply for judicial review is thus 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