AZIZ SHAFQAT v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 152/2025, [2025] HKCA 697

On Appeal From [2025] HKCFI 736

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 152 OF 2025

(ON APPEAL FROM HCAL NO 2571 OF 2019)

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J U D G M E N T

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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 18 March 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 22 August 2019, whereby the Board dismissed the Applicant’s appeal against the decisions of the Director of Immigration (“the Director”) dated 26 August 2016 and 28 July 2017.

BACKGROUND

2.  The Applicant is a national of Pakistan. He claimed that he entered Hong Kong illegally on 16 September 2013. He was arrested by the police on 17 September 2013. On 19 September 2013, he lodged a non-refoulement claim on the basis that, if refouled, he would be harmed or killed by a man called Molvi Sajid and his people from a Sunnis extremists group called Sipah-e-Sahaba Pakistan (“SSP”) because the Applicant belonged to the Shia sect and was a secretary of a Shia Muslim organisation called Jamia Jawadia. He claimed that he had been targeted by the SSP because he prevented a bomb attack in his home area in 2007, and Sajid was responsible for the intended bomb attack that would have killed Shia people in the local community[1]. Details of the Applicant’s claim have been summarised by the Judge at §§4 and 5 of his judgment dated 18 March 2025 (“the Judgment”).

3.  By a Notice of Decision dated 26 August 2016 and a Notice of Further Decision dated 28 July 2017 (collectively “the Director’s Decisions”), the Director dismissed the Applicant’s non-refoulement claim with reference to all applicable risks: risk of torture[2], BOR 3 risk[3], persecution risk[4], and BOR 2 risk[5].

4.  The Applicant appealed the Director’s Decisions to the Board. On 22 August 2019, the Board dismissed the Applicant’s appeal, and confirmed the Director’s Decisions (“the Board’s Decision”). The Board’s reasons for its decision were summarised by the Judge at §11 of his Judgment, as follows:

“Having considered the evidence, the Board found that there was no reliable evidence that the [Applicant] had been a secretary of the Jamia Jawadia and on multiple occasions, the Board did not believe that the [Applicant] was telling the truth or that the copy of a report in relation to the [Applicant’s] assault was genuine [63-69, 72]. Further, the [Applicant] had not satisfied the Board that he came to Hong Kong to seek asylum or non-refoulement protection [74]. In conclusion, the Board held the [Applicant’s] claim failed under all applicable grounds and that the [Applicant] was in no different position from any other Shia citizen of Pakistan [77]. It therefore dismissed his appeal and confirmed the [Director’s Decisions].”

THE JUDGMENT

5.  On 4 September 2019, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision. No ground for seeking relief was given in the Form 86. In his supporting affirmation of the same date, the Applicant merely stated that he was not satisfied with the Board’s Decision and he asked to be permitted to stay in Hong Kong because he had problem in his home country.

6.  The Judge held a hearing of the leave application on 10 February 2025. On 18 March 2025, the Judge gave his Judgment refusing to grant leave to apply for judicial review, for the following reasons:

“[14] The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the [Applicant’s] appeal. The Court will not usurp the fact-finding power vested in the Director and the Board…

[15] The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the [Applicant] complained that the Board did not mention his son’s situation that he is suffering from cancer and is being treated in the United States.

…

[17] The fact that the Board did not mention his son’s situation in the Board’s Decision is because his son’s situation is irrelevant to his application and the Board should not take into consideration evidence not relevant to his application. This is not a valid reason against the Board’s Decision. There is no valid ground from the [Applicant] to challenge the Board’s Decision.

[18] There is no reason that the Court should interfere with the Board’s finding of the facts.

[19] The [Applicant] fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.”

THIS APPEAL

7.  In his Notice of Appeal filed on 24 March 2025, the Applicant put forward the following ground(s) of appeal: “The High Court did not consider my [judicial review]. Adjudicator did not give me correct decision. His decision is full of wrong. Please grant my leave.” [sic]

8.  The Applicant has failed to lodge written submissions in support of his appeal not less than 28 days before the hearing of the appeal (which was scheduled for hearing on 15 August 2025) in accordance with the directions given by the Registrar of Civil Appeals on 24 June 2025. Accordingly, he is deemed to have waived the right to have an oral hearing of his appeal and elected to have his appeal disposed of on paper. On 15 August 2025, the Applicant belatedly lodged his skeleton submissions. Having considered the documents before us (including the Applicant’s written submissions), we consider that it is appropriate to deal with the Applicant’s appeal on paper without an oral hearing.

DISCUSSION

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’s role is not to examine the Board’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)).

10.  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. No such error of law or procedural unfairness or irrationality in the decision of the Board is shown in the present case.

11.  In the Applicant’s skeleton submissions dated 15 August 2025, he refers to the procedural history of his case, and complains that the Judge failed to appropriately scrutinize “matters of law and/or matters of the Appeal Decision that were plainly wrong”, including (a) the proper weight to be attributed to the evidence presented, (b) the risk of harm, and (c) his credibility. The applicant has failed, however, to identify any particular point of law in relation to which the Judge allegedly erred. Further, the detailed matters raised by the Applicant are all new points which were not raised by the Applicant before the Judge or in his Notice of Appeal. We do not consider that the Applicant should be permitted to raise these new points, which concern assessment of the evidence by the Board, for the first time in his written submissions for the reason mentioned at §9 above. The Applicant’s complaint that the Judge failed to review the Board’s decision with rigorous examination and anxious scrutiny because the points that he now wishes to raise were not dealt with by the Judge has plainly no validity.

12.  For the sake of completeness, we shall briefly deal with them. In respect of (a), the Applicant argues that the Adjudicator ignored or otherwise did not attribute proper weight to relevant evidence adduced by him, and expected him to produce original documents instead of accepting copies of those documents. It is well established that the assessment of the evidence is a matter primarily within the province of the Board. The Board decided that no reliance could be placed on any of the copied documents produced by the Applicant not only because he had failed to produce the originals (as ordered by the Board), but also for the detailed reasons given at §§54-60 of the Board’s Decision. There is no basis for the court to interfere with the Board’s assessment of the evidence. The Applicant complains, in particular, about the Board’s finding at §66 of the Board Decision, and alleges that the Board speculated that some of the information contained in what was referred in as the FIR “could not have included interviews with others who accompanied [him] to the hospital”. The Board in fact specifically considered the Applicant’s explanation that the information in the FIR must have come from others, in particular two people who accompanied him to the hospital, but rejected that explanation for the reasons given at §66 of the Board’s Decision. That was a finding which the Board was entitled to make on the evidence before it. In no sense can it be said that the Board made a speculated finding as alleged.

13.  In respect of (b), the Applicant complains that (i) the Board, in finding that he was not personally targeted by Sajid and his companions, failed to consider his hospitalisation and the incident that took place in 2013 where Sajid and his companions attacked him causing him harm, and (ii) the Board made an error of law when it required the Applicant to show that he suffered actual injury or harm in the past in order to establish a risk of future harm. Neither complaint has substance. The Board expressly considered the Applicant’s evidence concerning the alleged incident in February 2013, but came to the conclusion that the Applicant was not a witness whose evidence could be relied upon (see §§65-69 of the Board’s Decision). The Board, having carefully analysed the evidence and material before it, found that the Applicant had failed to adduce any evidence upon which reliance could be placed, even to the low standard required, that he had been the victim of past persecutions or threats or that he was otherwise in a position where he would be particularly vulnerable (§75 of the Board’s Decision). The Board further held that the Applicant had failed to show that there were particular circumstances relevant to his case which might increase the likelihood of him facing a real risk of persecution or serious harm if he were to return to Pakistan (§75 of the Board’s Decision). In other words, the Board found not only that the Applicant did not suffer any past persecutions or threats, but also that there was no particular likelihood or risk of future harm to the Applicant.

14.  In respect of (c), the Applicant complains that the Board failed to give him a chance to respond to the credibility concerns mentioned at §§51-78 of the Board Decisions. The Applicant attended a hearing before the Board and gave evidence on his own behalf. The Board was entitled to reach a view on the Applicant’s credibility on the basis of his oral evidence as well as other documentary evidence before it. There was no obligation on the part of the Board to give the Applicant a further opportunity to respond to the Board’s findings before giving its decision.

15.  The Applicant has failed to identify or show any error in the Judgment refusing to grant leave to apply for judicial review, or raise any viable ground of appeal against the Order.

16.  The Applicant’s appeal has no merits, and is dismissed.