Shahzad Aamir v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 3559/2019

[2025] HKCFI 1702

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3559 of 2019

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

Following:

	consideration of the documents only;            or
	consideration of the documents and oral submissions by the Applicant in open court

Order by Deputy High Court Judge (Non-refoulement Claims) Teresa Wu:

(1)  Form 86 be amended, naming only the Torture Claims Appeal Board/ Non‑refoulement Claims Petition Office as the Putative Respondent and adding the Director of Immigration 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 2 December 2019, the Applicant applies for leave to apply for judicial review (“the Leave Application”) of the decision of the Torture Claims Appeal Board/ Non‑refoulement Claims Petition Office (“the Board”) dated 6 November 2019 (“the Board’s Decision”) confirming the decision of the Director of Immigration (“the Director”) dated 9 October 2018 (“the Director’s Decision”), which rejected his non-refoulement claim on grounds (“the Grounds”) under the Unified Screening Mechanism (USM) related to BOR 2 risk, BOR 3 risk and persecution risk[1].

2.On my own motion, I have amended Form 86, correctly naming only the Board as the proposed respondent and adding the Director as the proposed interested party.

Background

3.The material facts of this case, including the Applicant’s personal background, the incidents he relied to allege that he would be ill-treated or even killed by the Pakistani People’s Party in Pakistan, and the immigration and procedural history, etc. have been set out comprehensively in the Board’s Decision. It is not necessary to repeat them all over again. For completeness’ sake, reference can be made to the Board’s Decision, the hyperlink to which is included below[2]. Unless otherwise specified, I shall also adopt the Board’s abbreviations and descriptions herein.

Discussion

4.In the supporting affirmation, the Applicant has raised the following grounds to support his intended challenge of the Board’s Decision:

(1)  “ The Applicant believes that the Director(s) of Immigration and the Adjudicator of Appeal Board reached the decision wrongly in assessing his Non-refoulement claim. He believes that these decisions were not reasonable and unfair (as required by the Wednesbury test). Indeed, the right to life is protected under Article 28 of the Basic Law and Article 2 of the Bill of Rights. In practice, the right to life is mainly protected by the criminal law and it must be protected from extra-judicial killings such as the applicant may face if he would be deported to his country. In addition to this, the applicant believes that the Adjudicator failed to give him sufficient time and chance to arrange relevant evidence to his non­refoulement claim as well as his appeal.” (Ground 1)

(2)  “From the Director’s Decision, it was evident that the director has failed to appreciate or give the proper importance or weightage to the presence of state Acquiescence in the Applicant’s case. This has indeed led to an unfair outcome of rejecting the Applicant’s non­refoulement claim. The applicant was tortured at the Behest and the state law enforcement agencies as well as those in the high ups of political circles. It is submitted that the state would be rendered liable to the applicant by cause of the state and its public officials failing to provide reasonable protection for its citizens under the duty of due diligence.” (Ground 2)

(3)  “The Applicant submits that the Director has failed to take such argument into account or that the Director has failed to give enough weight to such argument before reaching the Decision. Further, the applicant submits that although the Director had listed relevant COIs which support the Applicant’s aversions that the police in his country would not be able to protect. The Director failed to consider or give enough weightage to those evidence and ruled otherwise.” (Ground 3)

(4)  “This was a clean case of unfair attitude shown by the Director which in itself is enough to render his Decision void. In Fact, the corruption and incompetency of the administration in his country is still a very serious problem. Various human rights organization has complied reports on the matter which stated testament to the applicant's assertions. Further, the director has failed to attain the high standard of fairness required by the Wednesbury test in the decision with the arguments put forward above. As such, the decision of the Director should be considered unreasonable in the scope of Public Law. The Applicant respectfully asks the Court to grant leave to the Applicant for judicial review.” (Ground 4)

5.I am not satisfied that any of these grounds is reasonably arguable with any realistic prospects of success at all: see Peter Po Fun Chan v Winnie Cheung & Another (2007) 10 HKCFAR 676.

6.First of all, the Applicant is seeking Court’s leave to challenge the decision of the Board, not that of the Director. The portion of Ground 1 and Grounds 2 to 4 that relate to the Director’s Decision must be rejected.

7.The remaining part of Ground 1 essentially constitutes the Applicant’s challenge of the Board’s findings of facts under the guise of judicial review.

8.It is well-established that the role of the Court in a judicial review is not to provide a further avenue of appeal. While the Court should examine whether the procedure adopted by the primary decision maker meets the high standard of fairness, the merits of non-refoulement claim are essentially matters for the primary decision-maker: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524, etc.

9.Having considered the Board’s Decision with rigorous examination and anxious scrutiny, applying an enhanced standard as required by law in view of the seriousness of the issues at hand, I do not find, nor has the Applicant sufficiently shown, any error of law, procedural unfairness, or irrationality on the Board’s part:

(1)  After going through all the evidence adduced by the Applicant and applying the relevant law and legal principles relating to the issues and the Grounds, the Board took the view that he was not a witness of truth and had fabricated and exaggerated his claim. The Board refused to accept that he was involved in any physical altercations for political reasons, or that he had been threatened or attacked. Based on the gaps, inconsistencies and other problems with his evidence, the Board rejected his claim for non-refoulement protection in entirety (see §§55, 67-68 of the Board’s Decision).

(2)  The Board had discussed BOR 3 risk, BOR 2 risk, and persecution risk in details, and concluded that:

(a)  The Applicant had failed to establish that he was at risk of harm. The Board found his evidence to be “self-serving, inconsistent and implausible”. The Board found that he had failed to show a genuine and substantial risk of being subjected to the alleged ill-treatment, and if there were such ill-treatment (if any) they would attain the minimum level of severity. The Board similarly found that he was not at any risk of being subjected to torture or cruel, inhuman or degrading treatment or punishment if returned so as to constitute a breach of BOR 3 (see §71 of the Board’s Decision).

(b)  The Applicant had not provided any evidence and the Board did not accept that he would be arbitrarily deprived of life, imposed death penalty, or otherwise be deprived of his rights under BOR 2 (see §72 of the Board’s Decision).

(c)  On the Applicant’s own evidence, the dispute, if any, was a private financial one, and he had not encountered any problems when he was not in Malakwal. The Board therefore considered that he had not established a well-founded fear of persecution (see §§73-74 of the Board’s Decision).

10.These findings of facts were exclusively within the province of the Board. The evaluation of risk of harm was primarily a matter for the Board. The Board was entitled to make its evaluation based on the evidence available. It is clear that the Board had correctly set out the burden of proof and standard of proof, the law and key legal principles relating to the Grounds under the USM, and observed a very high standard of fairness. The Board’s Decision was not Wednesbury unreasonable or irrational.

11.With respect to the Applicant’s current complaint that he had not been given sufficient time and chance to arrange his non­refoulement claim as well as appeal, it simply could not be genuine or justified:

(1)  It has only been raised by him at this stage and never before.

(2)  There is no evidence to show that he had ever raised this to the Board or sought adjournment.

(3)  Additionally, the decision of the Director subject to appeal/petition was dated 9 October 2018. On record, he filed the appeal for consideration by the Board on 22 October 2018. A Notice of Hearing was sent to him on 11 September 2019 and he appeared in person before the Board on 18 October 2019, with the assistance of an interpreter qualified in the Punjabi and English languages (see §§7, 9, 13 of the Board’s Decision).

Conclusion

12.For these reasons, I make an order that Form 86 be amended as described above and the Leave Application be dismissed.

Dated the 28^th day of April 2025

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