ALI MUHAMMAD v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 439/2026, [2026] HKCA 1351

On Appeal From [2026] HKCFI 2123

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 439 OF 2026

(ON APPEAL FROM HCAL NO 737 OF 2021)

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge To (“Judge”) on 17 April 2026 refusing to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”) dated 4 May 2021.  In that decision, the Board upheld the decision of the Director of Immigration (“Director”) dated 3 August 2018 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Pakistan born in 1990.  His claim was made on the basis that if he returned to Pakistan, Major Moeen Nawaz (who was a member of the Provincial Assembly (“MPA”) and a member of the Muslim League (N) political party) would harm or kill him due to his protection of his father (who was a political and social figure of the Muslim League (Q) political party in his home area) at a meeting concerning a land dispute.  Details of the applicant’s background, the basis of his claim and arguments advanced before the Board as well as the Board’s reasons for rejecting his appeal are all set out in the Board’s decision: see [4] of the Form CALL-1.  The Judge has set out the grounds advanced by the applicant in support of the application and his reasons for refusal of the application: see [18] – [25] of the Form CALL-1.

Appeal to this Court

3.  On 29 April 2026, the applicant filed his Notice of Appeal against the Judge’s decision.  He stated his grounds of appeal in 27 paragraphs and they may be summarized as follows: the Judge used a wrong approach to refuse leave by stating that there was “no realistic prospect of success” and that the Board’s decision was “utterly without fault”; the Judge acted unfairly by asking the applicant about any “error of law” in the Board’s decision when the applicant was unrepresented and English is not his first language; the Judge had a duty to consider the Board’s decision independently to confirm if the correct law had been applied; the Judge failed to identify the Board’s clear legal error in how it assessed the right to life because he relied on submissions of the unrepresented applicant; the Board’s reasons for rejecting the applicant’s account of the assault and the gun firing incident were “not good enough”, only based on the Board’s own speculations and not considered as an overall picture as opposed to separate incidents; the Judge failed to spot a clear error of law, namely how the Board defined BOR 2 risk and how it was applied in his case; the Board relied on general country of origin information and failed to consider the applicant’s specific personal experiences on the issue of state protection; the Board’s finding about being located by the MPA was contradictory to the applicant’s evidence; and the Judge erred by accepting the Board’s findings without dealing with specific problems as set out by the applicant.

4.  The applicant has lodged written submissions in which he stated that the Judge applied the wrong approach by determining the merits of the case rather than identifying any arguable errors of law, especially when the applicant lacked legal and language assistance; the Board applied the wrong test for BOR 2 risk by referring to the death penalty as the basis and by failing to apply the applicant’s facts properly; the Board’s findings on credibility in relation to the assault, gun firing incident and warnings were irrational; the Board’s finding on internal relocation was contradictory to its record of the applicant’s evidence; and the Board failed to give weight to the applicant’s personal experiences when considering the country of origin information in relation to state protection.

5.  As the applicant did not appear at the scheduled hearing, we determine the appeal on the basis of the available documents and materials.

Discussion

6.  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.

7.  In the present case, the Board found that there was no real risk of harm upon refoulement as alleged, because although the Board was willing to attach some credence and accept that there was a land dispute between the applicant’s father and the MPA, the Board did not accept the mere assertion of the MPA’s animosity towards the applicant and the occurrence of the ensuing incidents, including the assault, the gun firing and the MPA’s warnings.  The Board further found that this was a private matter between the applicant and the MPA without state involvement, that the risk of ill-treatment did not attain a minimum level of severity, that state protection would be available, and that internal relocation to other areas away from his home village would be a viable option for the applicant.  These are findings of fact open to the Board based on the evidence it received and for the reasons it gave.  As for the applicant’s complaints about the Board’s application of wrong legal tests, the applicant has plainly read the relevant parts of the Board’s decision out of context.  The applicant has failed to show any reasonably arguable public law error in relation to the Board’s decision.

8.  As to the complaint about the lack of legal and language assistance, it has been repeatedly stated by the Court of Appeal that as a matter of law, it is not the case that a non-refoulement claimant is entitled to free legal representation at all stages of the process; nor does the high standard of fairness required by law entail interpretation service being made available to an applicant at all times as he desires: Re Zunariyah [2018] HKCA 14 at [18]; Re Zahid Abbas [2018] HKCA 15 at [11] and Re Tariq Farhan [2018] HKCA 17 at [11].  We note that all the court documents, including the notice of appeal and written submissions filed in this appeal and in the court below were in English.  It is thus clear that either the applicant was himself conversant with the English language or he had access to language assistance of his own where necessary.  Further, we note that the applicant was legally represented in the preparation of the non-refoulement claim form and in the screening interview with the Director, which formed the basis of his present claim.  Thus, we do not find the non-availability of legal representation in the processes before the court to amount to any procedural unfairness.

9.  Equally, the applicant has not been able to demonstrate any error in the decision of the Judge or advance any viable ground of appeal against the Judge’s decision.  Contrary to the applicant’s complaints, the Judge had, in fact, closely assessed the Board’s decision at [25] of his decision in addition to addressing the grounds raised by the applicant at [19] to [23] of his decision.  We are not satisfied that there is any error in the Judge’s decision.

10.  The applicant’s appeal is accordingly dismissed.