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

HCAL 392/2020

[2025] HKCFI 3365

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 392 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;

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

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

Observations for the Applicant:

Introduction

1.  By prescribed Form 86 filed on 12 March 2020, the applicant applied for leave to apply for judicial review (“Leave Application”). The intended judicial review was against the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) dated 2 March 2020 (“Board’s Decision”) dismissing the applicant's appeal against a decision of the Director of Immigration (“Director”) dated 6 February 2017 (“Director’s Decision”) rejecting the applicant's non-refoulement claim on the ground of BOR 2 risk[1]. All the other applicable grounds for non-refoulement were covered by a prior decision of the Board dated 9 November 2016, which dismissed the applicant’s appeal against a prior decision of the Director dated 21 November 2014. The Board’s prior decision is not the subject matter of this Leave Application. The Board’s Decision can be viewed at the following hyperlinks: -

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000392_2020_files/the_Board's_Decision.pdf

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000392_2020_files/Earlier_Board's_Decision.pdf

2.  In his Form 86, the applicant named himself as the interested party. As the Director should have been the interested party, the Form 86 will be amended accordingly on the court’s own motion.

3.  The basis of the applicant’s claim was that he would be harmed or killed by supporters of the Pakistan People’s Party, due to his support for the rival Pakistan Muslim League Q Group. The Board’s 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.  At the applicant’s request for the hearing of the Leave Application, this court scheduled a hearing on 23 May 2025. The applicant attended the hearing in person. After having heard from him, this court informed him that the decision would be reserved, and be sent to his updated address.

Discussion

5.  A 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.

7.  In his Form 86, the applicant did not raise any grounds for judicial review. In his supporting affirmation, he only stated that his life was still in danger in his country.

8.  At the hearing, this court asked the applicant whether he had any further grounds he wished to submit in support of the Leave Application. The applicant said that his life was still in danger, and repeatedly stated that he could not go back. He also alluded to some new documents that would allegedly show that “they” had committed another murder. When this court asked him who had committed another murder, he said as he was in Hong Kong and he did not know the facts. In any event, he said he did not have the documents now but would later be available.

9.  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, the applicant refused to give oral testimony or answer questions at the hearing before the Board. Based on all the materials the Board had considered, the Board found that the applicant was unable to substantiate his claim and clarify any inconsistencies. The Board also found that reasonable state protection would be available and that internal relocation would be viable. The Board therefore rejected the applicant’s appeal. These are findings of fact, which the court in a judicial review will not interfere with, subject to there being any public law errors.

10.  Bearing in mind the enhanced standard that should be adopted in scrutinizing the Board’s Decision, this court is satisfied that the Board correctly applied the law relating to all the grounds and observed a high standard of fairness. It is trite that the requirement of “joint endeavor” did not entitle the applicant at the hearing before the Board to simply sit back and refuse to answer questions that Board wanted to raise with him : see TK v Michael C Jenkins [2021] HKEC 1597. He has not provided any grounds in support of the Leave Applicant either on paper or at the hearing before me. The applicant has not shown any errors of law or procedural unfairness or irrationality in the Board’s Decision. The applicant’s intended challenge to the Board’s Decision is not reasonably arguable with realistic prospects of success such that would enable this court to grant leave[5].

Orders

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

12.  The 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