AHSAN MOHAMMAD v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 259/2025, [2025] HKCA963

On Appeal From [2025] HKCFI 1703

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 259 OF 2025

(ON APPEAL FROM HCAL NO 3561 OF 2019)

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JUDGMENT

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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 (Non-refoulement Claims) Teresa Wu (“the Judge”) dated 28 April 2025 (“the Order”) refusing to grant leave to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 28 November 2019, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 28 August 2019.

BACKGROUND

2.  The Applicant is a national of Pakistan.  He claimed that he entered Hong Kong illegally on 26 June 2019.  He was arrested by the police on the same date[1]. On 28 June 2019, he lodged a non-refoulement claim on the basis that, if refouled, he would be harmed or killed by two members (Israr Khan and Jafar Shah) of the Pakistan Muslim League (Nawaz) because of a dispute over the ownership of a piece of farmland which his father bought in 2005.  He claimed that he faced a gunshot attack on 11 April 2014, was abducted in mid-April 2014, and was followed by some unknown men in a car in June 2018.  He believed that Israr and Jafar were behind all three incidents because they had grudges against his father due to the land dispute[2].

3.  By a Notice of Decision dated 28 August 2019 (“the Director’s Decision), the Director dismissed the Applicant’s non-refoulement claim on all applicable grounds: risk of torture[3], BOR 2 risk[4], BOR 3 risk[5], and persecution risk[6].

4.  The Applicant appealed the Director’s Decision to the Board.  On 28 November 2019, the Board dismissed the Applicant’s appeal, and confirmed the Director’s Decision (“the Board’s Decision”). The Board’s reasons for its decision were summarised by the Judge at §§13-15 of the CALL-1 Form:

“[13] …the Board was not convinced that the Applicant’s enemies were involved in the Incidents, as there was a gap of 4 years between Incidents 1 and 2 (2014) and Incident 3 (2018). If the people in Incident 3 belonged to the same group involved in Incident 2, they would not have waited for 4 years to kidnap him again. There was also nothing in Incident 3 to show that the people in the car indeed intended to kidnap him. The Board found that it was the Applicant’s ‘wholly unfounded’ and ‘sheer speculation’ that his enemies had masterminded all these and that they still had grudges against his father because of the land dispute in 2006. The Board did not believe that the land dispute was still alive and concluded that the Applicant ‘could not be speaking the truth’.

[14] The Board further considered that as all the Incidents occurred in the vicinity of the Applicant’s home village, his perceived fear was localized. Thus, even if such fear did exist, in order to avoid it, the Applicant could resort to internal relocation. This would also be the best option for him given his situation. The Board referred to the [country of origin information] and was satisfied that the Applicant had many options for relocation in Pakistan, including Lahore and Karachi. The Board also considered that at the time of the hearing, the Applicant was 32 years old, with 12 years of education and 2 years of working experience as a personal banking officer. The Board concluded that it would not be unduly harsh or unreasonable for him to relocate to places in Pakistan other than the locality of his home village. It is certainly not the case, as alleged by the Applicant, that the Board had acted unreasonably in failing to take into account his personal background and experience.

[15] The Board’s discussion and consideration of the different grounds under the [Unified Screening Mechanism] were set out in inter alia the following paragraphs in the Board’s Decision: (i) Torture Risk (§§44-49); (ii) BOR 2 Risk (§§50-52); (iii) BOR 3 Risk (§§53-57); and (iv) Persecution Risk (§§58-61).”

THE JUDGE’S DECISION

5.  On 2 December 2019, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision.  In the Form 86, he raised various intended grounds of judicial review, which the Judge summarised at §4 of the CALL-1 Form, as follows:

“(1) The Director and the Board had made the wrong decision in assessing his non-refoulement claim. Their decisions were not reasonable or fair, as required by the Wednesbury test. The Applicant reiterates his fear of being killed in his own country, claiming protection of his right to life (‘Ground 1’).

(2) The Director had failed to appreciate or give proper weight or importance to the presence of state acquiescence in the Applicant’s case, leading to the unfair outcome of rejection of his non-refoulement claim. The Applicant alleges that he had been tortured at the Behest, the state law enforcement agencies as well as in the high political circles. The state would be rendered liable to him by failing to provide reasonable protection for its citizens under the duty of due diligence (‘Ground 2’).

(3) The Board was unreasonable and acted procedurally unfairly by placing too much reliance on the [country of origin information (‘COI’)] without taking into account the Applicant’s personal background and experience. The Director had listed COI information which supported that the police in his country would not be able to protect him. The Director however had failed to consider or give enough weight to such evidence and to rule otherwise (‘Ground 3’).

(4) Before reaching the Director’s Decision, the Director had failed to take into account the Applicant’s argument or to give enough weight to it. This was a clear case of the Director’s unfair attitude, which was of itself enough to render the Director’s Decision void. The corruption and incompetency of the administration in his own country is still a very serious problem. Various human rights organizations have compiled reports which support his assertions (‘Ground 4’).

(5) With respect to the arguments put forward by the Applicant, the Director had failed to attain the high standard of fairness as required by the Wednesbury test. As such, the Director’s Decision should be considered unreasonable in the scope of public law (‘Ground 5’).

(6) The Board had acted procedurally improperly and/or unfairly when assessing whether or not to accept the Applicant’s explanations, and was unreasonable in requiring him to respond to questions that he was not in a position to offer any response. The Board had failed to take into account the nexus of political parties and official corruption existing in his country, making the persecution effectively the persecution by the State (‘Ground 6’).

(7)  Based on the findings, the Board ought to allow the Applicant’s appeal/ petition instead of dismissing it, and thus the Board’s Decision was irrational (‘Ground 7’).”

6.  On 28 April 2025, the Judge gave her decision rejecting all 7 intended grounds of judicial review raised by the Applicant, and refused to grant leave to him to apply for judicial review.  The Judge’s analysis was fully set out at §5-21 of the CALL-1 Form, which it is not necessary to repeat in this Judgment.  The Judge’s reasons may be summarised as follows:

(1) Since the Director’s Decision had been overtaken by the Board’s Decision, parts of Grounds 1 and 3 and the entirety of Grounds 2, 4 and 5, which sought to challenge the Director’s Decision, were bound to fail.

(2) The Applicant’s repetition of his claim of fear or his general assertion that the Board was unreasonable or unfair under Ground 1 was not a valid ground for judicial review to challenge the Board’s Decision.

(3) The Applicant’s mere assertion that the Board acted in a procedurally unfair manner or unreasonably by placing too much reliance on the COI without taking into account his personal circumstances under Ground 3 did not advance his case.  It was evident that on the available evidence, the Board concluded that the Applicant failed to establish the factual allegations on which his claim was based.

(4) The Applicant’s complaints under Ground 6 were vague, lacked particulars and/or could not be substantiated.  There was no procedural impropriety or unfairness in the Board requiring the Applicant to respond to the questions raised by the Board.

(5) The Applicant’s complaint of the procedural or public law error allegedly committed by the Board as raised under Ground 7 was not made out by merely stating that the Board should or ought to have allowed his appeal/petition.

THIS APPEAL

7.  In his Notice of Appeal filed on 2 May 2025, the Applicant states that he does not agree with the Judge’s decision because there are “many errors” in the Board’s Decision which the Judge failed to find in the proceedings below, but he has failed to give any particulars.

8.  The Applicant has failed to lodge any written submissions in support of his appeal contrary to the directions given by the Registrar of Civil Appeals on 16 September 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.  Having considered the documents before us, 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 of Appeal’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, 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, at §13.  No such error of law or procedural unfairness or irrationality in the decision of the Board is shown in the present case.

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

12.  The Applicant’s appeal has no merit, and is dismissed.

[1] See §7 of the Director’s Decision.

[2] See §§6-19 of the Director’s Decision.

[3] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.

[4] This refers to the risk of being arbitrarily deprived of his life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[5] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[6] This refers to the risk of persecution with reference to the non‑refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees.