WAJID BUTT v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 424/2025, [2026] HKCA 130

On Appeal From [2025] HKCFI 2317

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 424 OF 2025

(ON APPEAL FROM HCAL NO. 627 OF 2020)

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J U D G M E N T

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Hon Anthony Chan JA (giving the Judgment of the Court):

1.  This is the Applicant’s appeal against the order (“Dismissal Order”) of Deputy High Court Judge (Non-refoulement Claims) Philips Wong (“Judge”) dated 13 June 2025 by which his application for leave to apply for judicial review (“Leave Application”) against the decision of the Torture Claims Appeal Board (“Board”) dated 6 April 2020 (“Board’s Decision”) was dismissed. By that decision, the Board upheld the decision of the Director of Immigration (“Director”) to reject the Applicant’s non-refoulement claim.

2.  The Applicant is a national of Pakistan. The basis of his non-refoulement claim had been set out in detail in the Board’s Decision, which may be viewed online via the hyperlink contained in footnote 1 of the Form CALL-1. In gist, the Applicant claims that if he returns to Pakistan he would be harmed or killed by his maternal uncles because he refused to convert to Shia Islam as demanded by them.

3.  In [5] to [8] of the Form CALL-1, the Judge gave detailed reasons for refusing the Leave Application.

4.  By a Notice of Appeal filed on 20 June 2025, the Applicant appeals against the Dismissal Order. The Applicant lodged his written submission on 23 June 2025. In summary, the Applicant contends that:

(1)  The Board’s Decision is unfair, as it failed to consider the grave risks the Applicant faces in his home country;

(2)  The Board’s Decision is illegal, unlawful, self-contradictory, perverse and arbitrary;

(3)  The Judge failed to give proper or sufficient weight to state acquiescence in this case, which led to the claim being unfairly rejected despite the Applicant being tortured at the behest of state officials and politicians; and

(4)  The Judge also failed to attain high standards of fairness by failing to take into account the serious problems in his country as reported by human rights organizations in Country of Origin information (“COI”).

5.  Pursuant to the directions given by the Registrar of Civil Appeals on 20 June 2025, this appeal has been referred to this Court to be disposed of on paper without an oral hearing, and we consider it appropriate to do so.

6.  The general approach of this Court in dealing with appeals in non-refoulement cases has been 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, this Court 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. This Court’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst at [14(6)]).

7.  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 is an error of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022 at [13].

8.  In respect of the first two grounds of appeal, we note that they do not identify any error in the Judge’s reasoning. On the facts of this case, there was no state involvement in the ill-treatment which the Applicant alleges, and the Board found that there was no real risk of harm. Thus, the issue of state acquiescence does not arise in this case.  We are unable to see any merit in the grounds of appeal.

9.  In the premises, the appeal is dismissed with no order as to costs.