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

HCAL 174/2021

[2025] HKCFI 5523

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 174 of 2021

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

Following;

1.   Form 86 be amended as follows:- the Director of Immigration be named as the Putative Interested Party.

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

Observations for the Applicant:

Introduction

1.  By Form 86 filed on 18 February 2021 (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 8 January 2021 (the “Board’s Decision”).

2.  In the Form, the Applicant named the Board as both the proposed respondent and the proposed interested party.  As it is trite that the Director of Immigration (the “Director”) should be the proposed interested party in an application of this sort, I make an order to amend the Form on the Court’s own motion.

3.  The Applicant requested an oral hearing for the Leave Application.  The hearing took place on 13 October 2025 and the Applicant attended in person.  At the hearing, the Applicant said he wanted more time to adduce further evidence. I asked what evidence he intended to submit and why the evidence was not submitted earlier.  In response, the Applicant said the evidence he wanted to submit will show that his enemy had occupied the land in question, that his home was destroyed and that his mother was missing.  He further alleged that the evidence was in his phone but he had lost his phone in October 2024.  The Applicant however did not explain why he did not adduce such further evidence earlier before he lost his phone. 

4.  As no proper application had been made by the Applicant, and no explanation had been provided on the relevance of the evidence intended to be adduced to the Leave Application, I told the Applicant that the Court was not prepared to adjourn the hearing to let the Applicant adduce such further evidence.  Having said that, I gave direction that if the Applicant wished to adduce further evidence, he should file an affirmation exhibiting such documents and explaining the relevance thereof by 17 October 2025.  The Court would then consider whether to allow the admission of such further evidence.  Apart from the above, the Applicant did not say anything in respect of the Leave Application at the hearing.

Further Evidence

5.  No Affirmation had been filed by 17 October 2025.  Instead, on 16 October 2025, the Applicant issued a letter to the Court attaching 3 documents. In the letter, the Applicant said the attached documents show the position in his country.  He said one document is the police report showing that he had lost his phone in October 2024.  Apart from the aforesaid, the Applicant did not explain the nature of the documents, let alone the relevance of them to the Leave Application.

6.  I have considered the police report, as well as the translation of the other 2 documents.  I do not see the relevance of these documents to the Leave Application and I have reservation on the reliability of the same. 

7.  In relation to the police report, it is adduced to collaborate the Applicant’s explanation at the hearing on 13 October 2025.  However, the question remains why such evidence, which was allegedly stored in his lost phone, could not be adduced before October 2024.  There is no explanation to that.  The police report itself is not relevant to the Leave Application.  It is only relevant as to whether the Court should allow the admission of the late evidence.

8.  The second document seems to be a police report (or complaint form) in Pakistan.  The report was in relation to a domestic dispute in which a woman’s husband was shot.  This Court is not in a position to tell the relevance of this report to the Applicant’s claim or to the Leave Application.  I have no idea about the identities of the people mentioned in the report and whether they are related to the Applicant.  From the third document, it seems that the person who fired the shot was a friend of the Applicant’s new enemy, but there is simply insufficient information to work out what the Applicant intends to say from these documents.  I had made it clear at the hearing that the Applicant had to file an affirmation to explain the nature and relevance of the documents if he wanted the Court to consider admitting the same.  The Applicant has failed to do so.  In the absence of any explanation, I refuse to allow the admission of this document.

9.  The third document is entitled “Affidavit” allegedly made by someone called Muhammad Amjad.  In this “Affidavit”, this gentleman made a number of bare assertions without supporting documents.  He said that the Applicant (assuming that he was referring to the Applicant, as the spelling of the name is different) has an enemy called Shoaib Zameer Minhas who is a gangster.  This Shoaib Zameer Minhas seems to be the son of Mohammad Zamir, i.e. the Applicant’s uncle referred to in the Board’s Decision (although the spelling of the name is different).  In the “Affidavit”, it was also mentioned that the Applicant’s old home was demolished and his mother was missing. 

10.  I do not consider it safe for this Court to guess the nature of this document and its relevance.  This document was not adduced under oath (despite my direction that the Applicant has to adduce any further evidence by way of affirmation).  I also do not know whether this document is a proper “affidavit” executed pursuant to the laws of Pakistan.  In the premises, I have reservation on the reliability of this self-serving statement.  Even assuming the contents of the document to be true, there are simply insufficient particulars and details such that it is not possible to work out how this document may be relevant to the Leave Application.  I also note that the contents of this document appear to be inconsistent to the Applicant’s claim before the Board.  He now alleges a new enemy.  If the Applicant’s case is that he now has a new enemy, the proper course for him to do is to make an appropriate application before the Director.

11.  In the premises, I refuse to allow the admission of these documents.

Background

12.  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[1] is included below for reference.

Discussion

13.  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 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 or procedural unfairness or irrationality in the decision of the Board.  (See Nupur Mst v Director of Immigration [2018] HKCA 524, at §14)

14.  The Applicant did not provide any grounds in support of the Leave Application in the Form.  In the supporting Affirmation, the Applicant simply stated that the Board had disregarded his dangerous situation.

15.  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 claim based on the evidence (§§22-51 of the Board’s Decision).  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.  Accordingly, I refuse to grant leave for judicial review.

16.  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

17.  In the premises, I make an order that the Form be amended as described above and 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