MAHMOOD FAISAL v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 204/2025, [2025] HKCA 962

On Appeal From [2025] HKCFI 1431

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 204 OF 2025

(ON APPEAL FROM HCAL NO 3756 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) Philips Wong (“the Judge”) dated 11 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 13 December 2019, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 16 March 2018.

BACKGROUND

2.  The Applicant is a national of Pakistan.  He entered Hong Kong on 15 February 2014 with a working visa arranged by his brother for the purpose of attending a conference in Hong Kong.  He was permitted to stay as a visitor until 1 March 2014.  He failed to leave Hong Kong after the expiry of his limit of stay, and had overstayed since 2 March 2014.  He was arrested in Hong Kong on 16 June 2016[1].  On 19 June 2016, he lodged a non-refoulement claim on the basis that, if refouled, he would be harmed or killed by (i) the family of his girlfriend (Samina) because he belonged to a lower caste or ethnic group and his girlfriend’s family disapproved of his romantic relationship with her, and (ii) members of the Pakistan Muslim League (Nawaz) (“PML-N”) because his girlfriend’s family were connected with PML-N, but he was a supporter of another political party.  He claimed that both the father and brother of his girlfriend had threatened to kill him in 2013, and he was once injured in an assault by his girlfriend’s brother[2].

3.  By a Notice of Decision dated 16 March 2018 (“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.  At the hearing before the Board on 19 December 2018, the Applicant said that his problem in Pakistan was merely about his relationship with his girlfriend, but not about his political stance.  However, the Applicant also said that he had already broken up with his girlfriend since his departure from Pakistan in February 2014.  In fact, according to the Applicant, one of the reasons he came to Hong Kong was in order to stop seeing his girlfriend[7].

5.  On 13 December 2019, the Board dismissed the Applicant’s appeal, and affirmed the Director’s Decision (“the Board’s Decision”).  In its decision, the Board found that the objective country of origin information (“COI”) did not corroborate the Applicant’s claim that his ethnic group was of a class which was significantly lower than his ex-girlfriend’s (§62). The Board also noted that according to the Applicant, his claim of fear of harm from members of the PML-N did not relate to his political stance (§65).  The Board did not accept the Applicant’s claim to be truthful, taking into account his delay in seeking non-refoulement protection since his arrival in Hong Kong under a fraudulent visa application (§68).  The Board found there was no ground for believing that he would face any real, personal or foreseeable risk of harm arising from the objection of his ex-girlfriend’s family to their relationship should he return to Pakistan (§§69-71).  In any event, the Board found that state protection was available to him in Pakistan, and reasonable internal relocation was an option open to him (§§74 and 84-88).

THE JUDGE’S DECISION

6.  On 17 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 stated that (i) the Board’s Decision was wrong and unfair, (ii) the Board rejected his case without any valid reason, and (iii) he could not relocate within Pakistan because of, amongst other things, financial problems.  In his supporting affirmation of the same date, he repeated his fear of returning to Pakistan and his assertion that internal relocation would not be an option for him upon his refoulement.

7.  On 11 April 2025, the Judge gave his decision refusing to grant leave to apply for judicial review, for the following reasons:

“[8] I have considered the Board’s Decision in details. I do not find any error of law, procedural unfairness or irrationality. Neither has the Applicant been able to demonstrate any of the same. The Applicant’s criticism of the Board’s Decision in the Form is vague and lacks particulars.

[9] On the issue of relocation, there is nothing to indicate that the Board had failed to take into account any relevant matters. There is equally nothing to indicate that the Board had erred in its analysis or finding. The Board was entitled to come to the conclusion it did on relocation (see §§18, 28, 83 to 89 of the Board’s Decision). It is also important to note that in the present case, the Board found that the Applicant had failed to establish a real risk in his home area. So, strictly speaking, the Board did not even need to address the issue of relocation (§§83 to 84 of the Board’s Decision). I do not see how the Board’s Decision in this regard can be said to be in error.

[10] What the Applicant said in the supporting Affirmation had also been considered by the Board (see for example §§8 to 17, 20 to 25, 60 to 73 of the Board’s Decision). The fact that the Applicant does not agree with the views or findings of the Board does not mean that the Board had committed any errors. The Board was entitled to come to such findings based on the evidence.

[11] The Board’s Decision was comprehensive with adequate reasons provided. It satisfies the enhanced Wednesbury test and is not Wednesbury unreasonable or irrational. I am not satisfied that the Applicant’s intended challenge of the Board’s Decision is reasonably arguable with any realistic prospects of success. Accordingly, I refuse to grant leave for judicial review.

[12]  Leave application of this sort is meant to be a filtering process and I am not expected to give elaborated reasons for my decision (see Re Zunariyah [2018] HKCA 14, at §23).  Suffice for me to state that in reaching the decision, I have considered all the relevant documents before me, as well as the grounds advanced by the Applicant.”

THIS APPEAL

8.  In his Notice of Appeal filed on 16 April 2025, the Applicant put forward the following ground(s) of appeal: “The High Court did not consider my [judicial review].  Adjudicator did not give me correct decision.  His decision is full of wrong.  Please grant my leave.” [sic]

9.  The Applicant has failed to lodge written submissions in support of his appeal in accordance with the directions given by the Registrar of Civil Appeals on 29 July 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

10.  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)).

11.  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.

12.  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.

13.  The Applicant’s appeal has no merits, and is dismissed.

[1] See §8 of the Director’s Decision, and §§2 and 3 of the Board’s Decision.

[2] See §§9-16 of the Board’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.

[7] See §§21 and 23 of the Board’s Decision.