RE ALI AZMAT

CACV 487 /2025, [2026] HKCA 318

On appeal from [2025] HKCFI 2705

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 487 OF 2025

(ON APPEAL FROM HCAL NO. 341 OF 2020)

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J U D G M E N T

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Hon Chu VP (giving the Judgment of the Court):

1.  By a notice of appeal filed on 11 July 2025, the applicant seeks to appeal the decision of Deputy High Court Judge Michael Wong (“the Judge”)  given on 2 July 2025[1] dismissing his application for leave to apply for judicial review against the decision dated 24 February 2020. The intended judicial review concerns the decision of the Torture Claims Appeal Board (“the Board”)  dismissing the applicant’s appeal against the decision dated 8 August 2018 of the Director of Immigration (“the Director”)  which rejected his non-refoulement claim.

2.  After the applicant had lodged his appeal bundles, the Director informed the Court by letter dated 21 October 2025 that the applicant has been removed from Hong Kong in the period between 13 and 19 October 2025.  Accordingly, we have proceeded to consider the appeal on paper.

3.  The applicant is a national of Pakistan, aged 56. He entered Hong Kong illegally and was arrested by the police on 22 August 2009.  He later lodged a torture claim[2] which was refused by the Director on 29 January 2014.  The applicant did not appeal the decision.  Instead, he raised a non-refoulement claim which he elaborated in a supplementary claim form.  The basis of his claim is that, if refouled, he would be harmed or killed by a person named Javed due to a land dispute, and his brother, uncle and father had been killed due to the dispute.

4.  By a Notice of Decision dated 8 August 2018, the Director rejected the applicant’s non-refoulement claim having regard to the BOR 3 risk[3], persecution risk[4] and BOR 2 risk[5]. The applicant’s appeal to the Board was heard on 29 October 2019.  The details of the applicant’s claim and his evidence at the hearing before the Board were set out at [24] to [29] and [40] to [80] of the Board’s decision[6]. We will not repeat them in this judgment.

5.  By its decision dated 24 February 2020, the Board dismissed the appeal. In gist, for the reasons given in [82] to [89] and the findings made in [91] to [97] of its decision, the Board was satisfied that the applicant faces a real risk of being subjected to serious or significant harm if he returns to his home village. The Board, however, found that the applicant could safely avoid the harm by relocating to Lahore where his family had already relocated to, or to other places such as Karachi.  The Board concluded that the applicant therefore failed to make out a claim for non-refoulement protection under the BOR 3 risk, BOR 2 risk and persecution risk grounds.  The Board did not deal with the torture risk ground in light of the previous dismissal of the torture claim which had not been appealed.

6.  The applicant filed a Form 86 and a supporting affirmation on 9 March 2020 to seek leave to apply for judicial review against the decision of the Board.  The applicant provided no grounds in support of his application.  

7.  The Judge heard the application at a hearing held on 10 April 2025.  By a Form CALL-1 dated 2 July 2025, the Judge dismissed the leave application.  Principally, the Judge was satisfied that the Board had correctly set out the applicable law, identified the issues and had observed a high standard of fairness, and did not discern any error of law, procedural irregularity or irrationality.  The Judge therefore concluded that the intended judicial review enjoyed no realistic prospect of success  

8.  The applicant appeals the Judge’s decision to this court.  The grounds of appeal in the Notice of Appeal state that: (1)  the Director filed to appreciate or give proper weight to the presence of state acquiescence in the applicant’s case; (2)  the Director, the Board and the Court have failed to take this argument in consideration; the Board failed to make sufficient enquiry before finalising its determination; and (4)  the Director and the Board failed to have regard or give weight to the gravity of the applicant’s circumstances, and the applicant should be given an opportunity to properly plead his case.  

9.  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’s decision afresh as if it is a fresh application for judicial review: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

10.  Further, it is well established that the assessment of evidence, COI, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director as they are the primary decision makers.  The Court, in its supervisory role, will not intervene by way of judicial review unless there are errors of law, procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022.

11.  We are of the view that the matters raised in the Notice of Appeal and the grounds of appeal attached to it do not constitute viable grounds of appeal.  First, none of the grounds were raised in the application or hearing before the Judge.  It is not open to an applicant to advance new grounds in an appeal, especially when they are fact-sensitive grounds.  Second, other than a general assertion that the country was corrupt and that Javed and his group had some political influence, the applicant’s claim and evidence do not provide any proper basis for considering state acquiescence.  Third, the Board had also found that the political influence of Javed’s group was not as great as claimed.  The applicant has not sought to, or advanced any ground to challenge this finding of fact.  Fourth, the Board’s decision contains a detailed assessment of the applicant’s case and evidence and the relevant legal principles.  There is no basis for saying that the Board had not given full or proper consideration to the applicant’s case.  Fifth and importantly, the crux of the Board’s decision is its finding that the applicant can avoid the risk of harm by safely relocated to join his family or to other places.  In both the Form 86 and the supporting affirmation, the applicant has not advanced any arguable ground to challenge this crucial finding.  In the circumstances, the Judge’s conclusion that the intended judicial review has no realistic prospect of success and his decision to dismiss the application for leave to apply for judicial review cannot be faulted.  

12.  For the above reasons, the applicant’s appeal is devoid of merits.  Accordingly, we dismiss the appeal.  The applicant, despite being asked, has not provided the Director with an address for service in Pakistan, we will therefore dispense with the service of this judgment on the applicant.  Our judgment will be uploaded to the Judiciary website and the applicant will be able to access and read it.