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HCAL 2185/2025
[2026] HKCFI 2611
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2185 of 2025
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BETWEEN
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Hussain Ghulam |
Applicant |
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and |
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Torture Claims Appeal Board / |
Putative |
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Non-Refoulement Claims Petition Office |
Respondent |
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and |
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Director of Immigration |
Putative |
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Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)
Following:
Order by Deputy High Court Judge Levy:
1. The Form 86 be amended on the court’s own motion.
2. There shall be no extension of time granted to the applicant to file the application for leave to apply for judicial review against the decision of the Board dated 14 May 2020 out of time.
3. The applicant’s application for leave to apply for judicial review against the decision of the Board dated 14 May 2020 and the decision of the Director dated 5 September 2025 be dismissed.
Observations for the Applicant:
Background
1. By a “Notice of application for leave to apply for judicial review” in the prescribed Form 86 filed on 29 September 2025, the applicant applied for leave to apply for judicial review (“Leave Application”). The intended judicial review was against the decision of the:
(i) Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) dated 14 May 2020 (“Board’s Decision”) dismissing the applicant’s appeal against a decision of the Director of Immigration (“Director”) dated 24 September 2018 rejecting the applicant’s non-refoulement claim (“Director’s Earlier Decision”) based on all applicable grounds[1]. The Board’s Decision is set out in the following hyperlink:
https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2025/HCAL002185_2025_files/the_Board's_Decision.pdf
(ii) Director dated 5 September 2025 (“Director’s Subsequent Decision”) refusing the applicant’s request for making a subsequent claim (“Subsequent Claim”) for non-refoulement under s.37ZO of the Immigration Ordinance
2. Essentially, there are two separate intended judicial reviews. One was against the Board’s Decision, and anther against the Director’s Subsequent Decision. For clarity, I would refer to the former as the Leave Application (1) and the latter as the Leave Application (2).
3. Procedurally, the applicant should have filed two separate applications – one against the Board as the putative respondent, another against the Director as the putative respondent. In the Form 86, notwithstanding the fact that the Director is correctly stated as one of the putative respondents, he should strictly be also a putative interested party in his intended judicial review against the Board’s Decision. The Form 86 shall be amended accordingly on the court’s own motion.
Leave Application (1)
4. The basis of the applicant’s claim was that, if refouled to Pakistan, he would be harmed or killed by a member of the Legislative Assembly and his associates as the applicant was a member of the Jammu Kashmir Liberation Front (“JKLF”) who rallied people not to vote for the opposite party and to join JKLF. The 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.
5. The applicant has not requested for an oral hearing. On 30 December 2025, the applicant filed an affirmation applying for the withdrawal of the Leave Application stating that he could now return home as his problem had been resolved. On 2 January 2026, the Removal Assessment and Litigation (Removal and Deportation) Section (1) of the Immigration Department faxed a letter to the court, informing the court the applicant had submitted a memo to court on 23 December 2025 stating that he wanted to withdraw the Leave Application. In the circumstances, this court will dispose of the Leave Application on paper.
Discussion
6. A leave application operates as a ‘filtering’ process. Hence, there is no requirement or expectation to give elaborate reasons for my decision.[2] It is therefore sufficient to state my observations after considering the Board’s Decision and the applicant’s materials adduced.
7. 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. The Form 86 provided no such grounds. In the applicant’s supporting affirmation, the applicant averred that the Board’s credibility assessment was unfair and irrational and it had wrongly excluded hearsay evidence and the supporting affirmation contained no such grounds.
8. 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 Board found that significant discrepancies and deficiencies in the applicant’s evidence regarding his membership and support of the JKLF. This led the Board to conclude that his claims were not credible. It did not accept that the applicant was ever an active supporter, member or senior member of the JKFL or that he ever participated in any of the party’s activities. Hence, the Board found that the applicant would not be subjected to any risk of harm if refouled. These are findings of fact, which the court in a judicial review will not interfere with subject to there being any public law errors.
9. Bearing in mind the enhanced standard that should be adopted in scrutinizing the decision of the Board, this court is satisfied that the Board correctly applied the law relating to all the grounds and observed a very high standard of fairness. The grounds the applicant advanced in the supporting affirmation were vague and did not condescend to particulars. He 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 any realistic prospects of success such that would enable this court to grant leave[5].
10. Another matter I need to consider is the delay. Pursuant to O 53 r 4(1) of the Rules of the High Court, an application to apply for judicial review shall be made promptly and in any event within 3 months from the date of the Board’s Decision. The applicant was late for more than 5 years, which was substantial. In the absence of any explanation for the length delay, I refuse to grant leave to the applicant to extend time to file the Leave Application (1).
Leave Application 2
Background
11. The background as taken from the Director’s Earlier Decision and the Director’s Subsequent Decision can be briefly stated as follows.
12. On 21 February 2019, the applicant married to a divorced Pakistani Hong Kong resident in Hong Kong. On 26 May 2020, he was issued with a dependent visa. At the end of 2023, the applicant found out that his wife had committed adultery, and therefore wanted to divorce her. When the wife family found out his intention, they threatened to kill the applicant if he did. Around mid-October 2024, the applicant filed a divorce. The wife’s family threatened to kill him.
13. On 16 October 2024, his application for an extension of the dependent visa was rejected on the grounds of doubtful marital relationship. After the applicant’s dependent visa expired, he did not leave as he feared that his ex-wife’s family would kill him if refouled. The ex-wife’s family had influence in the same city of the applicant is in Pakistan, and the father was a prominent supporter of the Pakistan Muslim Leave N (PMLN).
14. On 7 May 2022, the applicant’s made a request (“Request”) in person for the making a subsequent claim on the basis that, if refouled, he would be harmed or killed by his ex-wife’s family.
Discussion and conclusion
15. The same principles discussed in [6] above shall equally be applicable.
16. In the Director’s Subsequent Decision, the Director took into account the facts and findings he made in the Director’s Earlier Decision including the findings of the reasonable availability of state protection and internal relocation. The Director found that the applicant’s evidence was contradictory, especially in relation to the timeline concerning his allegation of breakdown of marital relationship and the application for the dependent visa. The Director concluded that the significant inconsistency in his timeline casts doubt on the reliability of his statements and undermined the credibility of his claims. The Director therefore did not accept that he had any new fear as asserted. The Director therefore refused the applicant’s Request. These are findings of fact, which the court in a judicial review will not interfere with subject to there being any public law errors.
17. It is plain that the applicant did not provide any grounds in support of the Leave Application in showing that on what basis the Director was said to have acted unlawfully or procedurally unfairly in reaching the Director’s Decision, or how such decision could be said to be Wednesbury unreasonable.
18. After having rigorously examined the Director’s Decision and the Director’s Earlier Decision with anxious scrutiny, this court is satisfied that the Director correctly applied the law, and observed a very high standard of fairness. I am satisfied that there were no errors of law or procedural unfairness or irrationality in the Director’s Decision.
19. For these reasons, I am not satisfied that the Leave Application (2) is reasonably arguable with realistic prospects of success such that would enable this court to grant leave: see Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.
Withdrawal application
20. Apart from the application to withdraw the Leave Application referred to above, there is nothing outstanding in this action. In the circumstances, I make an order to dismiss the Leave Application, and hereby order the dismissal of the Leave Application: see Re Manik Md Mahamudun Nabi [2022] HKCA 471; Ngo Xuan Tuyen v Torture Claims Appeal Board [2024] HKCA 1140.
Recent Removal
21. Before the applicant was removed, he signed a standard form memo dated 2 February 2026 addressed to the court, stating that he “chose not to provide any correspondence address for communication with the court and service of court documents.”
Orders
22. The Form 86 be amended on the court’s own motion.
23. There shall be no extension of time granted to the applicant to file the application for leave to apply for judicial review against the decision of the Board dated 14 May 2020 out of time.
24. The applicant’s application for leave to apply for judicial review against the decision of the Board dated 14 May 2020 and the decision of the Director dated 5 September 2025 be dismissed.
Dated the 22nd day of May 2026
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( Alfred CHAN )
for Registrar, High Court
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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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant
on 22/5/2026
Hussain Ghulam
Applicant’s ref. no:
Nil. |
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 22/5/2026
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 13807/18/10/149/P2737
Director of Immigration
Putative Interested Party’s ref. no.: L/M (33734) in ImmD RA 7/37/C (formerly RBCZ/0010958/16), ImmD/CR T/C 3863/18 (formerly as RBCZ/10958/16)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] The applicable grounds are risk of torture under Part VIIC of the Immigration Ordinance (“torture risk”) , BOR 2 risk (this refers to the risk of violation of the right to life under Art. 2 of s.8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”), BOR 3 risk (this refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Art 3 of HKBOR) and persecution risk (This refers to the risk of persecution with reference to the non-refoulement principle under Art. 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol) under the USM (This refers to the Hong Kong Government’s Unified Screening Mechanism (“USM”) implemented since 3 March 2014 to process claims for non-refoulement protection. For a detailed description of the USM, see the judgment of Zervos J in HKSAR v Vu Thang Duong & Anor [2015] 3 HKC 293.
[2] Re Zunariyah [2018] HKCA 14 at §23.
[3] Ho Loy & Another v Director of Environmental Protection, HCAL 21/2015, 22 December 2016 at §142.
[4] 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.
[5] Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.
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