Re Mehmood Aamir

CACV 136/2025, [2025] HKCA 823

On Appeal From [2025] HKCFI 717

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 136 OF 2025

(ON APPEAL FROM HCAL NO 2354 OF 2024)

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J U D G M E N T

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Hon Au JA (giving the Judgment of the Court):

1.This is the applicant’s appeal against the order of Deputy High Court Judge KW Lung (“the Judge”) dated 11 March 2025 ([2025] HKCFI 717) (“the Leave Decision”) refusing his application for leave to apply for judicial review against the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”) dated 26 November 2024 (“the Board’s Decision”), whereby the Board dismissed the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 4 September 2024 (“the Director’s Decision”) refusing his non-refoulement claim.

2.We heard the appeal on 2 September 2025.  After the hearing, we reserved our judgment to be handed down in writing.  This is what we do now.

BACKGROUND

3.The applicant is a national of Pakistan.  He sneaked into Hong Kong on 26 April 2024 by speedboat and surrendered to the Immigration Department on 30 April 2024.  The applicant lodged his non-refoulement claim on 3 July 2024 on the basis that, if refouled, he feared that he would be harmed or killed by a man named Alam Khan and his men because the applicant was involved in a land dispute with him.  Details of the applicant’s claim were summarised by the Judge at [3] ‑ [5] of the Leave Decision.

4.By the Director’s Decision, the Director dismissed the applicant’s non-refoulement claim on all applicable grounds including torture risk[1], BOR2 risk[2], BOR3 risk[3], and persecution risk[4].

5.The applicant subsequently appealed against the Director’s Decision to the Board and attended an oral hearing before the Board on 21 November 2024.  By the Board’s Decision, the Board dismissed his appeal and confirmed the Director’s Decision.  The Board’s reasons were summarised by the Judge at [8] ‑ [9] of the Leave Decision:

“8. The applicant appealed the Director’s Decision to the Board. On 21 November 2024, the Board conducted an oral hearing for his appeal.

9.         Having considered the evidence, the Board found that the evidence was based only on the applicant’s words and no evidence was adduced to show the land relating to the dispute although registration of land titles in Pakistan was now computerized [50]; the Board formed the view that the applicant’s claim was based on speculation that Alam was a powerful and influential landlord with connections, yet he was not affiliated or belonged to any groups or organizations in Pakistan [52] Alam and his men never harmed his family and it was his father who owned the family land [59]; and the applicant’s evidence amounted to inconsistent and questionable evidence [63]. In any event, the Board found that state protection was readily available [68] and the Board was satisfied that it would not be unduly harsh for the applicant to internally relocate [30-31, 69]. In conclusion, the Board held the applicant’s claim failed under all applicable grounds. It therefore dismissed his appeal and confirmed the Director’s Decision.”

THE LEAVE DECISION

6.On 3 December 2024, the applicant filed a Form 86 to apply for leave to apply for judicial review against the Board’s Decision.  In support of his application, the applicant alleged that the Board had been procedurally unfair and improper, and that the Board had failed to consider state acquiescence, placed excessive reliance on Country of Origin Information (“COI”) disregarding his own personal background, and failed to provide him with sufficient time to arrange relevant evidence.

7.The applicant attended an oral hearing before the Judge on 5 February 2025 and an Urdu interpreter was present to provide language assistance.  By the Leave Decision, the Judge refused to grant leave to apply for judicial review.  His reasons were stated at [12] ‑ [18] of the Leave Decision:

“12. 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. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

13. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said that the Board should have accepted his evidence.

14. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

‘13. (1) … …Assessment of evidence and COI materials and 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.’

15. Those grounds under paragraph 11 are not valid to challenge the Board’s Decision. He did not ask the Board to adjourn the hearing for him to have more time to prepare for his hearing. He confirmed that all necessary details of his claim are in the Board’s Decision. The other grounds are his bare assertions without any evidence in support.

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

17. The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.

DISPOSITION

18.  I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.”

THIS APPEAL

8.In his Notice of Appeal filed on 18 March 2025, the applicant stated:

“The Decision made was unsatisfied and was totally unfair. The High Court Judge has favored only those of the Immigration and Appeal Board. I do not agree with the Decision made by case.” (sic)

9.Pursuant to the Notice of Hearing dated 23 July 2025, the applicant lodged his written submissions on 4 August 2025.  In those submissions, he complained that the Judge failed to apply the principles of irrationality and procedural fairness.  He reiterated that problems still persisted in his home country and that he would face hardship if refouled.  He complained that the Board had been irrational and failed to analyse whether state protection existed in his home country.  He feared that he would be attacked, tortured and killed by his enemies if refouled.

10.We heard the appeal on 2 September 2025.  An Urdu interpreter was also present to provide language assistance. During the hearing, the applicant submitted that he took out his application for leave to apply for judicial review as his life was threatened back in his home country and he could not go back.

DISCUSSION

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 at [14].  In particular, in an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal will 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 decision maker’s decision afresh as if it were a fresh application for judicial review (see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(6)]).

12.Further, 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.  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.

13.In our view, the applicant’s allegations have no substance.  His complaints are all general and vague without specific particulars or evidence in support.  General assertions of his fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6].  His allegations therefore do not constitute proper grounds of appeal.

14.Moreover, it is also factually erroneous for the applicant to allege that the Board failed to analyse whether state protection existed in his home country.  In fact, the Board had given detailed account and extensive analysis based on various COI before finding that state protection would be available for the applicant in his home country: see [27] ‑ [29] of the Board’s Decision.  There is no substance in his allegations.

15.In any event, we have considered the Leave Decision carefully and are unable to see any arguable ground of appeal against the decision.  The Judge considered the allegations raised by the applicant and gave detailed reasons for his decision.  We see no basis to disturb the Leave Decision.

16.The applicant’s appeal against the Leave Decision has no merit and is dismissed.