RAJA AKAASH ILYAS v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 1240/2025, [2026] HKCA 322

On Appeal From [2025] HKCFI 6219

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 1240 OF 2025

(ON APPEAL FROM HCAL NO 1176 OF 2025)

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JUDGMENT

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Hon Chow JA (giving the Judgment of the Court):

1.  This is the Applicant’s appeal against the order of Deputy High Court Judge K W Lung (“the Judge”) dated 19 December 2025 (“the Order”) refusing to grant leave to the Applicant to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 13 May 2025 (“the Board’s Decision”), whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 13 March 2024.

2.  The Applicant alleges that, if refouled to Pakistan, he will be harmed or killed by Chaudhry Rukhsar (“Chaudhry”), a member of the legislative assembly in his home area who supports the Pakistan Muslim League (N) (“PML-N”) and other members of PML-N, because he refused to change his support from the Pakistan Tehreek-e-Insaf (“PTI”) to PML-N.  The Applicant’s background, the basis of his claim, the findings of the Board and its reasons for dismissing the Applicant’s appeal against the Director’s decision have been set out in detail in the Board’s Decision, and referred to by the Judge in the Judge’s decision (see §§3-4 of the CALL-1 Form).  We do not propose to repeat them here.

3.  The Judge’s reasons for dismissing the Applicant’s leave application are set out at §§12-16 of the CALL-1 Form. In gist, the Judge considered that the Applicant did not raise any valid ground to challenge the Board’s findings, and there was no reason to interfere with the Board’s Decision.

THIS APPEAL

4.  In his Notice of Appeal filed on 29 December 2025, the Applicant states that he disagrees with the decisions of the Director and the Board.  He complains that the Director and the Board did not properly investigate his claim, and his claim was not determined fairly.  He also states that state protection would not be available to him in his home country.

5.  In his written submissions lodged on 14 January 2026, the Applicant submits the following documents which he seeks to rely upon in support of his appeal:

(1)     an affidavit of Muhammad Ilyas (“Muhammad”) dated 5  January  2026 (with English translation), in which Muhammad, who appears to be the father of the Applicant, stated that on 19 October 2021 at 8:00 pm, three unknown masked men came to his home to ask for the whereabouts of, and threatened to kill, the Applicant (“the 2021 Incident”);

(2)     a First Information Report filed by Muhammad with the local police on 19 October 2021 in respect of the 2021 Incident;

(3)     an affidavit of Raja Zohaib Ilyas (“Zohaib”) also dated 5 January 2026 (with English translation) in which Zohaib, who appears to be a sibling of the Applicant, stated that on 20 August 2025 at 11:00 pm, four unknown armed men entered his home and asked for the whereabouts of, and threatened to kill, the Applicant (“the 2025 Incident”);

(4)     a First Information Report filed by Zohaib with the local police on 20 August 2025 in respect of the 2025 Incident;

(5)     the National Identity Card of Zohaib issued by the government authority of Pakistan on 9 July 2020; and

(6)     the National Identity Card of a man named Raja Samar Ilyas issued by the government authority of Pakistan on 20 June 2023

(“the Documents” collectively, and “Document (1)” to “Document (6)” respectively).

6.  At the hearing of the appeal, the Applicant asked the Court to consider the Documents when considering his appeal.

DISCUSSION

7.  In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant.  If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed.  The Court of Appeal’s role is not to examine the Board or Director’s decision afresh as if it was a fresh application for judicial review (see Nupur Mst v Director of Immigration [2018] HKCA 524,at §14(6)).

8.  Further, the assessment of evidence, country of origin information, 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 or procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022, at §13.  No such error of law or procedural unfairness or irrationality in the decision of the Board is shown in the present case.

9.  The matters raised by the Applicant in the Notice of Appeal are general assertions without particulars, and are directed at the decisions of the Director and the Board.  They cannot constitute valid grounds of appeal against the Judge’s decision.

10.  The Documents submitted by the Applicant’s written submissions are new evidence.  The Applicant has not made any application for leave to adduce new evidence for the purpose of his appeal.  In view of the fact that the Applicant is acting in person, we shall consider whether to admit the Documents as new evidence in the present appeal even in the absence of a formal application by the Applicant for leave to adduce new evidence.

11.  Generally, to justify the admission of new evidence, the Applicant has to satisfy the three conditions established in Ladd v Marshall [1954] 1 WLR 1489[1] (see Nupur Mst, at §14(3)).

(1)     In respect of Documents (1) to (4), the 2021 Incident and the 2025 Incident took place prior to the decision of the Judge dated 19 December 2025.  Although the 2 affidavits of Muhammad and Zohaib were only made in January 2026, the Applicant could have asked the deponents to make the affidavits earlier and submit them to the Judge for his consideration prior to 19 December 2025.  At the hearing of the appeal, the Applicant said that when he left CIC, he had no idea what to do, and he was not feeling well at that time.  However, upon the Court’s further inquiry, the Applicant informed the Court that he left CIC on 6 December 2023, and he maintained contact with his father and his sibling after he left CIC.  There is no relevant evidence of the Applicant’s medical conditions during the period of over 2 years from the date of his release from CIC to the date of the Judge’s decision.  We do not accept the Applicant’s explanation for his delay in obtaining the affidavits from his father and sibling in relation to the 2021 Incident and 2025 Incident.

(2)     There is nothing in Documents (1) to (4) to show that the 2021 Incident and the 2025 Incident were related to the Applicant’s dealings or disputes with Chaudhry or any members of the PML-N.  We also note that, as mentioned at §27 of the Board’s Decision, the Applicant “did not have any problems as a PTI supporter until about early 2023 when Mr Chaudhry told him he had to change his support to the PML-N like Mr Chaudhry had done”. We do not see that the 2021 Incident has any relevance to the Applicant’s non-refoulement claim.

(3)     In any event, the Board found that both state protection and reasonable internal relocation options would be available to the Applicant in Pakistan (§§60-67 and 76-83).  As earlier mentioned, the assessment of the availability of state protection and viability internal relocation are matters falling primarily within the province of the Board. 

(4)     Documents (5) and (6) do not add anything of substance to the Documents (1) to (4).

12.  In short, the Applicant has failed to show that the Ladd v Marshall conditions are satisfied.  In particular, he has failed to show that the proposed new evidence could not have been obtained and adduced in the proceedings below with reasonable diligence, or would or might, if believed, have a very important influence on the result of his case.  Even if the strict Ladd v Marshall conditions are not applicable because Documents (1) and (3) post-date the date of the Judge’s decision, for the reasons mentioned at §11 above, we would not be prepared to exercise our discretion to admit the Documents as new evidence in the present appeal.

13.  In all, the Applicant has failed to raise any viable ground of appeal against the Order.

14.  The Applicant’s appeal against the Order has no merit and is dismissed.

[1] The three conditions are: (1) it must be shown that the evidence could not have been obtained with reasonable diligence for use in the court below; (2) the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive; and (3) the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible.