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

HCAL 1450/2022

[2026] HKCFI 3161

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1450 of 2022

Application for Leave to Apply for Judicial Review

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

Following;

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

Observations for the Applicant:

Introduction

1.  By Form 86 filed on 9 December 2022 (the “Form”), the Applicant applied for 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 3 November 2022 (the “Board’s Decision”).

2.  The Applicant requested an oral hearing for the Leave Application.  The hearing took place on 11 May 2026 and the Applicant attended in person.  At the hearing, the Applicant indicated that he wished to adduce further evidence to show that his mother was attacked about 2 years ago by the same “enemies”. Notwithstanding that there was no explanation for the delay in adducing such evidence, as the incidents referred to by the Applicant appeared to happen after the Board’s Decision, I granted leave to the Applicant to adduce such further evidence by 4 p.m. on 15 May 2026 if he wished to.  I specifically pointed out to the Applicant that if he intended to file such evidence, he had to explain in detail the nature and relevance of the evidence to the Leave Application, and the Court would then consider the relevance of such evidence.

3.  The Applicant eventually filed an affirmation on 13 May 2026 (the “Second Affirmation”).  I shall consider this Second Affirmation hereinbelow. 

Background

4.  The Applicant’s background, the basis of his claim and the arguments he advanced had been set out in detail in the Board’s Decision, and it is not necessary for me to repeat the same here.  The hyperlink to the Board’s Decision is included below[1] for reference.

Discussion

5.  The applicable legal principles relating to application of this sort are well established.  The role of the Court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director of Immigration (the “Director”) and the Board.  Though in non-refoulement cases, the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board.  Assessment of evidence, country of origin information (COI) materials, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director).  The Court will not intervene by way of judicial review unless there are errors of law, procedural unfairness or irrationality in the decision of the Board.  (See Nupur Mst v Director of Immigration [2018] HKCA 524, at §14)

6.  The Applicant did not provide any grounds in support of the Leave Application on the Form.  In the supporting Affirmation filed on 9 December 2022, the Applicant simply attached the Board’s Decision with no grounds provided.

7.  In the Second Affirmation, the Applicant exhibited 3 videos which purportedly showed that his mother was seriously injured after she was attacked by the Applicant’s cousins in Pakistan during a land dispute.  I have looked at the videos.  The videos show a woman suffering injuries to her head.  Having considered the Second Affirmation and the exhibiting videos carefully, I do not consider that this Affirmation assists the Leave Application.  I briefly set out my reasons below:-

(1)   The videos only show that a woman had suffered injuries to her head. There is no documentary evidence adduced (e.g. hospital records or police documents) showing the identity of the woman, the cause of the injury, the date of the alleged attack or the identities of the suspects. 

(2)   Even in the Second Affirmation itself, the Applicant did not explain in detail the circumstances leading to the alleged attack of the woman.

(3)   In the premises, the Court is simply not in a position to assess the relevance of the alleged attack to the Leave Application.  It is not even clear whether the attack was indeed related to the land dispute which formed the basis of the Applicant’s case before the Board.

(4)   In any event, in so far as the Applicant claims that there has been change of circumstances since the Board’s Decision, the proper course for the Applicant to take is to file a subsequent claim under section 37ZO of the Immigration Ordinance (Cap 115) based on the alleged change of circumstances, rather than applying for judicial review against the Board’s Decision.  The challenge to the Board’s Decision based on any “new” circumstances is misconceived.

8.  I have considered the Board’s Decision in detail.  I do not find any error of law, procedural unfairness or irrationality.  Neither has the Applicant been able to demonstrate any of the same.  There is nothing to indicate that the Board had failed to take into account any relevant matters. The Board’s Decision was comprehensive with adequate reasons provided.  The Board was entitled to reject the Applicant’s claims based on the evidence and its reasoning (§§47-70 of the Board’s Decision).  I see no errors in the Board’s reasoning.  The Board’s Decision satisfies the enhanced Wednesbury test and is not Wednesbury unreasonable or irrational.  I am not satisfied that the Applicant’s intended challenge of the Board’s Decision is reasonably arguable with any realistic prospects of success. 

9.  Leave application of this sort is meant to be a filtering process and I am not expected to give elaborated reasons for my decision (see Re Zunariyah [2018] HKCA 14, at §23).  Suffice for me to state that in reaching the decision, I have considered all the relevant documents before me.    

Conclusion

10.  In the premises, I make an order that the Leave Application 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