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

CACV 255/2025, [2025] HKCA 964

On Appeal from [2025] HKCFI 1204

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 255 OF 2025

(ON APPEAL FROM HCAL NO 2601 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 22 April 2025, Deputy High Court K. W. Lung refused to grant leave for the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board (“the Board”)  concerning his non-refoulement claim.[1] The applicant filed a notice of appeal against the decision on 30 April 2025. 

2.  The applicant is a national of Pakistan. He entered Hong Kong illegally on 10 June 2006 and was arrested by the police on 4 August 2007. He lodged his torture claim on 17 March 2009 which had not been completed before the commencement of the unified screening mechanism (“USM”). His claim was then taken to be a non-refoulement claim under the USM. His claim was made on the basis that, if refouled, he will be harmed by the family of his former girlfriend.

3.  By a Notice of Decision dated 13 February 2015, the Director of Immigration (“the Director”)  rejected the applicant’s non-refoulement claim on all applicable grounds including torture risk[2], BOR 3 risk[3] and persecution risk[4]. 

4.  By a Notice of Further Decision dated 9 February 2017, the Director rejected the applicant’s claim on BOR 2 risk[5] in the absence of response from the applicant to the invitation to submit additional facts which may be relevant to his non-refoulement claim.

5.  He lodged an appeal with the Board and attended the hearings before the Board on 5 January 2017 and 16 May 2018. He submitted at the second hearing that he would also be killed by his brother-in-law in Pakistan. The Board did not accept his alleged risk of harm from his brother-in-law as the applicant refused to give evidence about his alleged fear. The Board further found that the family of his former girlfriend did not show an intention to seriously harm him in the past and their motivation to do so must have been reduced to a very low level because they had already punished him for his attempted abduction and the girl got married some time ago. The Board also found that the applicant did not suffer serious harm from the ill-treatment by the police. In addition, the Board assessed that internal relocation and state protection are available to the applicant in Pakistan. Therefore, the Board concluded that the applicant has failed to demonstrate that he is entitled to non-refoulement protection in Hong Kong on any of the applicable grounds and dismissed the appeal on 9 August 2019.

The judge’s decision

6.  The applicant filed a Form 86 and an affirmation on 6 September 2019 to seek leave to apply for judicial review against the decisions of the Director and the Board (“the Decisions”). The grounds of his intended judicial review were as follows:

(1)  The Director failed to appreciate or give proper importance or weight to the presence of state acquiescence.

(2)  The applicant was tortured at the behest of and in full collusion with the police and the state law enforcement agencies as well as those in the high-ups of political circles.

(3)  The Director failed to consider or give sufficient weight to the relevant country of origin information (“COI”)  which supported the applicant’s assertion that the Pakistani police would not be able to protect him.

(4)  In referring to the relevant COI, the Director included meanings which suited his pre-conceived conclusion.

(5)  The corruption and incompetence of the administration in Pakistan is still a very serious problem. Various human rights organisations have compiled reports on the matter which supported the applicant’s assertions.

(6)  The Director failed to attain the high standard of fairness required by the Wednesbury test. He should be considered unreasonable in public law.

(7)  The adjudicator failed to make sufficient enquiry before finalising the determination. The adjudicator failed to give sufficient chance to the applicant to arrange relevant evidence for his non-refoulement claim as well as his appeal.

7.  The applicant attended a hearing before Deputy High Court Judge K. W. Lung on 12 March 2025. The applicant confirmed at the hearing that he did not consider that the Decisions were wrong. The judge found that the applicant’s grounds were just bare assertions without any evidence in support. The judge concluded that the intended judicial review had no realistic prospect of success and dismissed the leave application on 22 April 2025.

Grounds of appeal

8.  The applicant stated the following grounds of appeal in the Notice of Appeal filed on 30 April 2025:

(1)  The decisions are unlawful;

(2)  The decisions failed to take into account many things and issues;

(3)  The applicant’s life is in danger in his home country so he cannot go back.

9.  In his written submissions, he reiterated the background of his case and the grounds he previously put forward to the court below. He also contended that the immigration officer did not know the real situation as the officer never visited Pakistan. He further submitted that the Director violated the law as a sufficiently established threat of violation of Article 3 of the Hong Kong Bill of Rights constitutes a ground restraining the Hong Kong government from proceeding with the deportation.

10.  At the hearing of the appeal, the applicant stated that he had nothing further to add.

Legal principles

11.  The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524. In particular, in an appeal against refusal of leave to apply for judicial review in a non-refoulement case, 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 or the Director’s decision afresh as if it were a fresh application for judicial review.

Analysis and disposition

12.  The applicant’s grounds and submissions are just bare assertions without evidence in support. In particular, the ground concerning the adjudicator’s failure to make sufficient enquiry is totally without basis as the adjudicator did ask questions and provided opportunity for the applicant to elaborate on and clarify his case but the applicant refused to give evidence at the hearing before the Board. 

13.  The applicant has not been able to demonstrate any error in the decision of the Judge or advance any viable ground of appeal against the Judge’s decision. We are not satisfied that there is any error in the Judge’s decision. 

14.  The applicant’s appeal is accordingly dismissed.