RE EHSANULLAH

CACV 55/2026, [2026] HKCA 490

On Appeal From [2026] HKCFI 96

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 55 OF 2026

(ON APPEAL FROM HCAL NO. 2449 OF 2020)

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J U D G M E N T

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Hon Chu VP (giving the Judgment of the Court):

Introduction

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge (Non-Refoulement Claims) Vincent Lung (“the Judge”) given on 8 January 2026[1] refusing his application for leave to apply for judicial review against the decision dated 10 December 2020 of the Torture Claims Appeal Board (“the Board”) dismissing his appeal against the decision dated 31 March 2020 of the Director of Immigration (“the Director”) which rejected his non-refoulement claim having regard to the torture risk[2] , BOR 3 risk[3] , persecution risk[4] and BOR 2[5] risk grounds.

Background

2.  The applicant is a national of Pakistan born in 1986.   He entered Hong Kong illegally and surrendered to the Immigration Department on 2 December 2019.  He raised a non-refoulement claim based on a fear of being harmed or killed by his distant relative Mr. CM, who had a dispute with his late father over a piece of land.  Details of the applicant’s claim and his evidence and the grounds he advanced before the Board were set out in the Board’s decision[6] .

3.  The applicant appealed the Director’s rejection of his claim to the Board.  Although the notice of appeal was filed late, the Board accepted the late filing and heard the appeal at an oral hearing held on 23 September 2020.  For the reasons given in its decision, the Board dismissed the appeal. 

4.  In gist, the Board found multiple material inconsistencies in the applicant’s claim and his explanations for them to be unpersuasive.  The Board concluded that the applicant was not a credible witness, and rejected his claims that his father had a dispute with Mr CM and/or his uncle, his parents were shot dead, and Mr CM and his men had assaulted and threatened him.  The Board found the applicant to have fabricated his claims to create a case for non-refoulement protection.

The Judge’s decision     

5.  By a Form 86 filed on 16 December 2020, the applicant applied for leave to judicially review the Board’s decision.  He did not provide any grounds for seeking relief. 

6.  The Judge heard the application at an oral hearing held on 15 October 2025.  By a Form CALL-1 dated 8 January 2026 dismissed the application, holding that there was no error of law, procedural unfairness or irrationality in the Board’s decision and the intended judicial review was not reasonably arguable.   

This appeal

7.  By a Notice of Appeal filed on 22 January 2026, the applicant appeals the Judge’s decision to this Court.  The grounds of appeal state that the Judge’s decision was reached unfairly without giving the applicant the opportunity to clarify his case and the situation in his country.

8.  The applicant’s written submissions state that: (1) the Judge failed to apply the principle of irrationality when the Board had failed to evaluate and make a finding whether a consistent pattern of gross and mass violation of human rights in his country; (2) the Judge failed to apply the principle of procedural unfairness when the Board was under a duty to give reasons for its decision; (3) the Judge failed to apply the high standard of fairness; (4) the Judge did not exercise care and failed to analyse his claim properly; (5) the Board failed to give him sufficient opportunity to arrange relevant evidence; (6) the applicant’s human right not to be subject to torture is involved; (7) the Board had significantly relied on sources of news that were not officially recognized or were simply hearsay; (8) the Board failed to assess whether state protection existed in his home country; and (9) his life is in jeopardy and he will face hardship if he were to go back to his home country.  

9.  At the hearing, the applicant reiterated that he could not return to his home country because his life would be under threat.  

Our reasons for decision

10.  In assessing the merits of the appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals in non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  In particular, the role of the Court in a judicial review is not to provide a further avenue of appeal.  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.  In the determination of an appeal against the refusal of leave by the Court of First Instance, 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.  It is not the role of this Court to examine the decision of the Board afresh as if the appeal were a fresh application for judicial review.

11.  In the present case, the Board found the applicant’s claims not credible due to the many and material inconsistencies in his evidence, including his conflicting versions about the land dispute, the size of the land, the identity of the individuals involved, the chronology of material events and his actions following the alleged incidents.  The Board rejected the entire factual basis of the applicant’s claim and concluded that he failed to show any real risk of harm entitling him to non-refoulement protection under any of the applicable grounds.  These are findings of fact open to the Board in light of the evidence it received and for the reasons it gave.

12.  We are of the view that the arguments advanced by the applicant in this appeal do not constitute viable grounds of appeal for the following reasons:

(1)     The applicant has not advanced any viable grounds to challenge the Board’s findings on credibility and rejection of his evidence.  Given that the Board had rejected the entire factual basis of his claim, the assertion that the applicant would face risk of harm or encounter hardship or his human rights would be violated if he were to return to his home country cannot stand.

(2)     The complaints that the Board’s decision is irrational, the proceedings before the Board are procedurally unfair, and the Board erred in the use of country of origin information are all general assertions unsupported by particulars. 

(3)     There is no basis for the complaint that the Board did not give the applicant sufficient opportunity to arrange relevant evidence.  The Board had held an oral hearing to hear his appeal and had afforded him full opportunity to respond and explain the inconsistencies in his evidence. Ultimately, the Board found his explanations to be unconvincing.  This is a finding that the Board was entitled to make for the analysis and reasons given in the decision.  The applicant has also not specified what is the evidence that he had not been able to present to the Board.  

(4)     Similarly, there is no basis for the complaint that there was procedural unfairness because the Board was under a duty to give reasons.  It is evident from its decision that the Board had properly discharged its duty to give reasons for its decision and the reasons given are clear and adequate. 

(5)     As the Board had rejected the applicant’s assertion that he would be subject to risk of harm, it did not have to consider the issue of state protection.  The complaint that the Board did not assess whether state protection existed in the applicant’s home country is irrelevant.

(6)     The complaint that the Judge’s decision was unfair as he did not have an opportunity to clarify his case and the situation in his country has no proper basis.  The applicant had attended the oral hearing before the Judge, during which he was assisted by an interpreter. He was at liberty to put forward any explanation or clarification of his case.       

(7)     The complaints that the Judge failed to analyse the applicant’s claim and to apply the high standard of fairness are misplaced when it is not the Judge’s role to consider the applicant’s claim afresh and in light of the applicant’s failure to advance any ground to support his intended judicial review.

13.  For the above reasons, the applicant’s appeal has no merits.  Accordingly, we dismiss the appeal.

[1] [2026] HKCFI 96

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

[3] This refers to 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.

[4] 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 and its 1967 Protocol.

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

[6] https://legalref.judiciary.hk/doc/ judg/html/vetted/other/en/ 2020/HCAL002449_2020_files/ the_Board's_Decision.pdf