SHAHZAD AAMIR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 258/2025, [2025] HKCA 970

On Appeal from [2025] HKCFI 1702

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 258 OF 2025

(ON APPEAL FROM HCAL NO 3559 OF 2019)

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J U D G M E N T

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Hon Cheng J (giving the Judgment of the Court):

Background

1.  On 28 April 2025, Deputy High Court Judge Teresa Wu refused to grant leave to the applicant to apply for judicial review of the decision of the Torture Claims Appeal Board (“the Board”)  of 6 November 2019.  The applicant filed a notice of appeal on 2 May 2025.

2.  This appeal was scheduled to be heard on 28 October 2025.  Despite the directions from the High Court to the applicant dated 5 September 2025, the applicant failed to lodge written submissions by the stipulated time.  As the said directions were not complied with, the hearing date has been vacated pursuant thereto.  The Court will deal with this appeal on paper.

3.  The applicant is a national of Pakistan.  He entered Hong Kong illegally on 5 April 2012.  He was arrested by the police on 5 November 2012.  He made a torture claim[1] by way of a written representation of 8 November 2012, which was rejected on 11 March 2013; his appeal against this was dismissed by the Board (differently constituted)  on 3 May 2013.  He then lodged his non-refoulement claim on 8 May 2013 on the basis that he would be ill-treated or killed by some members of the Pakistan People’s Party as he was a member of the Pakistan Muslim League (N).

4.  By a Notice of Decision dated 9 October 2018, the Director of Immigration (“the Director”)  rejected the applicant’s non-refoulement claim on all applicable grounds except for torture risk, namely: BOR 2 risk[2],

BOR 3 risk[3] and persecution risk[4].

5.  The applicant filed an appeal against the Director’s decision.  He appeared at the hearing of his appeal before the Board on 18 October 2019.  The Board noted that the alleged physical assault on the applicant or his cousin was due to a money dispute according to the applicant’s own evidence, and there was nothing to suggest that there was a political motivation for the assault.  The Board did not accept that the applicant had been involved in any physical altercations for political reasons or that he was threatened or attacked as alleged, because of the inconsistencies, vagueness and the lack of details in his evidence.  The Board concluded that the applicant failed to establish his claim on any of the applicable grounds and rejected the appeal on 6 November 2019.

The judge’s decision

6.  The applicant filed a Form 86 and an affirmation on 2 December 2019 to seek leave to apply for judicial review against the decision of the Board.  The grounds for his intended challenge may be summarised as follows:

(1)  The Director and the Board reached their decisions wrongly.  Their decisions are unreasonable and unfair.  The adjudicator failed to give the applicant sufficient time and chance to arrange relevant evidence;

(2)  The Director has failed to appreciate or give proper importance or weight to the presence of state acquiescence in the applicant’s case which has led to an unfair outcome.  The Director failed to take such an argument into account or failed to give enough weight to such an argument.

(3)  Although the Director listed the relevant country of origin information which supports the applicant’s averment that the police in his country would not be able to protect him, the director failed to consider or give enough weight to such evidence and ruled otherwise.

(4)  The corruption and incompetence of the administration in his country is still a very serious problem.

(5)  The Director has failed to attain the high standard of fairness required by the Wednesbury test in the decision.

7.  The hearing of the leave application was conducted before DHCJ Teresa Wu on 4 February 2025.  The Judge held that the applicant had not sufficiently shown any error of law, procedural unfairness or irrationality in the Board’s decision.  In particular, the Judge found that the Board was entitled to make its evaluation based on the available evidence.  The Judge further found that the applicant’s complaint that he was not given sufficient time and chance to arrange the relevant evidence was not genuine or justified.  Therefore, the Judge refused the leave application on 28 April 2025.

Grounds of appeal

8.  In his notice of appeal filed on 2 May 2025, the applicant stated that he disagreed with the decisions of the Director and the Board as his claim had not been determined fairly.

Legal principles

9.  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 scrutinising the decision of the Board due to the seriousness of issue at hand, the court should not usurp the role of the Board.  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).

10.  In determining an appeal, the Court of Appeal focuses on the decision of the Judge and would only reverse that decision if it can be demonstrated that the Judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

Analysis and disposition

11.  The applicant failed to point out any mistake or unfairness in the Judge’s decision.  He merely disagreed with the decisions earlier made by the Director and the Board. He has not identified any viable ground of appeal.

12.  His appeal is devoid of merit and is dismissed accordingly.