Aziz Aamir v. Torture Claims Appeal Board

HCAL 387/2021

[2026] HKCFI 1451

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 387 OF 2021

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

Order by Deputy High Court Judge Michael WONG:

1.   The applicant’s application for leave to apply for judicial review be dismissed.

Observations for the applicant:

The leave Application

1.By way of Form 86 dated and filed on 19 March 2021, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board (“the Board”) dated 10 March 2021 (“the Board’s Decision”).  The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2021/HCAL000387_2021_files/the_Board's_Decision.pdf

2.The Board found that the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 18 January 2018 (“the Director’s Decision”) failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”).  Hence, the Board confirmed the Director’s Decision, which rejected the applicant’s non-refoulement claim.

The applicant’s case

3.It is not necessary for this court to repeat the details of the applicant’s case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above.

4.In sum, the applicant claimed for non-refoulement protection because if refouled to Pakistan, he feared he would be harmed or killed by his ex-foreman, Zulfiqar, and other ex-co-workers in an air-conditioning factory, who were supporters of the then ruling party Pakistan Muslim League-Nawaz (“PMLN”), as the applicant was a supporter of the Pakistan Tehreek-e-Insaf (“PTI”) and refused to switch to support PMLN as demanded by them.

Oral hearing

5.The applicant requested for an oral hearing and his case was heard on 24 February 2026.

6.When this court asked the applicant for the grounds of his intended judicial review, the applicant merely said that there were political problems and he had some enemies.  His enemies were peaceful initially, but after 2 to 3 years, they came after him and his brother.  He was negotiating an agreement with his enemies for a solution, and he would return when an agreement was reached.  He confirmed that this problem had been presented to the Board for assessment.

7.The applicant also wanted to submit some documents such as first information reports to prove that his brother and his son were attacked.  However, after this court had explained to him that it would not receive any new evidence regarding his non-refoulement claim in a judicial review, the applicant then asked this court to give him some more time to stay in Hong Kong.

Grounds for judicial review

8.The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).

9.The applicant did not identify any grounds for the intended judicial review in Form 86, nor in his supporting affirmation dated 19 March 2021.  He merely stated in the affirmation that he would be killed by his enemy if he returned.

10.What the applicant said at the oral hearing before this court did not constitute any valid ground for his intended judicial review either.

Discussion

11.First of all, the problem and/or attack of the applicant’s brother and his son were not presented to the Board when it was dealing with the applicant’s appeal/petition.  The Court of Appeal has held in Trinh Thuy Huyen v Torture Claims Appeal Board [2024] HKCA 1090, that the Board had no duty to make investigation into any matter without the applicant raising it and it should not be considered by this court at this stage.

12.Further, as held in Nupur Mst v Director of Immigration [2018] HKCA 524, due to the difference in the role of the court in a judicial review and the role of the primary decision-makers, an applicant cannot rely on materials which have not been produced before the Board or the Director to contend that the latter erred in not taking those into account unless the decision-makers have a positive duty to elicit such materials on their own volition. 

13.Thus, the applicant cannot rely on any materials not placed before the Board as a ground for his intended judicial review, and there is no reason for this court to receive new evidence and re-assess the applicant’s non-refoulement claim.

14.The applicant’s political problem had already been fully assessed but rejected by the Board.  If the applicant intends to challenge the Board’s finding of facts, it is not permissible in an application for judicial review.

15.The role of the court in judicial review is not to re-assess the non-refoulement claims afresh.  The primary decision-makers in a claim for non-refoulement are the Director and the Board.  They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  The court will scrutinize the Board’s decision and intervene by way of judicial review only for errors of law, procedural unfairness or irrationality (see Nupur Mst v Director of Immigration, supra).

16.Thus, even though the applicant has failed to establish any valid ground for challenging the Board’s Decision, this court will still scrutinize the Board’s Decision for any errors of law, procedural unfairness or irrationality.

17.In assessing the applicant’s appeal, the Board held an oral hearing on 13 November 2020 and the applicant was present.  Thus, the applicant was given the chance to present his case to the Board in person.

18.As can be seen from paragraphs 49 to 56 of the Board’s Decision, the Board accepted that the applicant was a supporter of PTI, but he was not an activist with any significant profile so that members of the opposing parties, and in particular members and supporters of the PMLN, would target the applicant for serious harm or for killing.  The Board also found that the applicant in fact suffered no harm at the hands of his claimed enemies or anyone else at all from the time his ex-foreman and co-workers discovered he supported PTI until he departed Pakistan.

19.Having carefully considered all the evidence, the Board found the weight of the evidence did not support a conclusion that the applicant was being targeted or pursued with the intention that he would be seriously harmed or killed or inflicted with any form of proscribed harm which would necessitate international protection on the part of Hong Kong.

20.The Board noted the applicant’s own intention to relocate within Pakistan and his subsequent change of mind.  The Board found that in the event the applicant continued to hold a subjective fear and felt he could not return to his home area, it would be viable and reasonable for him to relocate to Multan or to other populous cities in Pakistan without undue hardship to him.

21.Thus, the Board concluded that even on the low standard of proof applicable in the consideration of non-refoulement claims, the suggestion of any risk to the applicant in his circumstances was far-fetched and fanciful.

22.The Board thus concluded that the applicant failed to establish his claim for non-refoulement protection on all the applicable grounds under the USM.

23.In view of the above findings, the Board considered that it was not necessary to consider the question of state protection.

24.The assessment of evidence and risk of harm was primarily within the sole ambit of the Board.  The Board was entitled to come to its own conclusion.  This court finds nothing wrong or unreasonable in the way the Board reached its decision. 

25.Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM, the burden of proof and the standard of proof.  The Board also correctly identified the issues and observed a very high standard of fairness.  This court could detect no errors of law, procedural unfairness or irrationality in the Board’s Decision. The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision. 

26.As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, for the court to grant leave to apply for judicial review, the claim has to be a reasonably arguable claim which enjoys realistic prospects of success.  It is the view of this court that the applicant has failed to establish such a claim and hence leave must be refused.

Conclusion

27.For reasons aforesaid, the Leave Application is dismissed.

Dated the 11^th day of March 2026

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