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

CACV 205/2025, [2025] HKCA 1005

On Appeal from [2025] HKCFI 1484

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 205 OF 2025

(ON APPEAL FROM HCAL NO 3806 OF 2019)

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JUDGMENT

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Hon H. Au-Yeung J (giving the Judgment of the Court):

1.  This is the Applicant’s appeal against the order of Deputy High Court Judge (Non-refoulement Claims) Martin Wong (“the Judge”) dated 11 April 2025 (“the Order”) refusing to grant leave to the Applicant to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 19 December 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.  On 26 June 2019, he was arrested by the police in Hong Kong for being a suspected illegal immigrant[1]. On 27 June 2019, he lodged a non-refoulement claim on the basis that, if refouled, he would be harmed or killed by the family of his girlfriend (Sana Iqbal) because their respective families were of different social backgrounds and statuses, and his girlfriend’s family disapproved of his romantic relationship with her.  He claimed that his girlfriend’s family once assaulted him and they also threatened to kill him on multiple occasions due to his relationship with their daughter[2].

3.  By a Notice of Decision dated 28 August 2019 (“the Director’s Decision”), the Director dismissed the Applicant’s non-refoulement claim with reference to all applicable risks: 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 19 December 2019, the Board dismissed the Applicant’s appeal, and confirmed the Director’s Decision (“the Board’s Decision”).  In its decision, the Board found that there were inconsistencies and incoherence in the Applicant’s evidence in relation to the occurrence of the assault by his girlfriend’s family on him, and the death threats he allegedly received from them, and found his evidence to be unreliable.  In gist, the Board disbelieved and rejected the Applicant’s claim on the evidence before it (§§19-35).  In any event, the Board considered that the Applicant’s dispute with his girlfriend’s family was private in nature, and that there was no state involvement (§51).  The Board did not consider his girlfriend’s family had the ability to locate him upon his return to Pakistan, and the risk of harm claimed by him was a localised one (§41).  Further, the Board found that there were reasonable internal relocation alternatives for him in Pakistan (§§42-45).     

THE JUDGE’S DECISION

5.  On 20 December 2019, the Applicant filed a Form 86 together with his affirmation in support to apply for leave to apply for judicial review of the Board’s Decision.  Attached to the Form 86 was a document titled “Grounds on which Relief is sought”.  In that document, the Applicant contended that the decisions of the Director and the Board were not reasonable, fair or rational. He complained that the Director failed to (i) appreciate, or give proper weight to, the presence of state acquiescence, (ii) hold that state protection was not available to him in his home country, and (iii) attain the high standard of fairness required by the Wednesbury test in reaching the decision[7]. He alleged that the Director had shown an unfair attitude towards him[8]. He further complained that the Board erred in (i) giving undue weight to the Country of Origin Information (“COI”) without taking into account his personal circumstances, (ii) unreasonably requiring him to respond to questions that he was not in a position to respond, and (iii) failing to take into account “the nexus of political parties and official corruption” which existed in his home country when assessing the persecution risk[9].

6.  On 11 April 2025, the Judge refused to grant leave to the Applicant to apply for judicial review, for the following reasons:

“[5] In his affirmation filed in support of the Form 86, the Applicant has not stated any error of law, procedural unfairness or irrationality of the [Board’s] Decision.

[6] Looking at the [Board’s] Decision, the [Board’s] was presented with all the evidence from the Applicant [2-17] and after careful consideration of the same it came to the conclusion that the Applicant’s factual case was not credible [19-35].

[7] The [Board] then proceeded also to analyse each of the four applicable grounds under the USM, identifying the correct legal principles to apply in each instance, and came to the conclusion that none of them was made out [46-63]. Further, the [Board] also concluded that internal relocation was viable and available to the Applicant in any event [37-45].

[8]  All in all, I do not see any errors of law, procedural unfairness or irrationality in the [Board’s] Decision, despite rigorous examination and anxious scrutiny.”

THIS APPEAL

7.  In his Notice of Appeal filed on 16 April 2025, the Applicant raises the following grounds of appeal:

“1. The Director’s Decision, it was evident that the director has failed to appreciate or give the proper importance or weightage to the presence of state Acquiescence in the applicant’s case. This has indeed led to an unfair outcome of rejecting the applicants non-refoulement claim.

2. The Applicant submit that the Director, the Adjudicator and the Court have failed to take such argument into account or that the Director has failed to give sufficient weight to such argument before reaching the Decision.

3. The Adjudicator failed to make sufficient enquiring before finalizing the determination. The Adjudicator stated that the Applicant had failed to advice any credible evidence to prove material elements of her claim.

4. Surprisingly, the director in the applicant Decision while referring to relevant COI’s kept including meaning which suited the applicant pre-conceived conclusion. This was a clear case of unfair attitude shown by the Director which in itself is enough to render the applicant’s decision.

5. The grounds of his appeal are that the gravity of the applicant circumstances has noted been weighed or realized by both putative Respondents while considering the application’s non-refoulement claim.  The applicant should be given an opportunity to plead her case properly.” [sic]

8.  In his written submissions lodged on 6 October 2025, the Applicant makes some generic submissions on general principles of law relating to non-refoulement claims, but fails to explain how they are applicable to his case.  He asserts that the Board acted in a procedurally unfair manner without properly assessing his credibility.

9.  At the hearing of the appeal, the Applicant had nothing to add to his written submissions.

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 matters raised in the Applicant’s Notice of Appeal and written submissions are directed at the decisions of the Director and/or the Board, and are general allegations without particulars.  They do not constitute any valid grounds of appeal against the Judge’s decision.  His complaint that he was not given an opportunity to plead his case properly has no substance because he testified for his case in the hearing before the Board, and subsequently appeared in the hearing before the Judge in which, according to the Judge’s notes, he confirmed that he had nothing to say.

13.  The Applicant has failed to identify or show any error in the Judge’s decision in refusing to grant leave to apply for judicial review, and we are unable to see any reasonable ground of appeal against the Judge’s decision.  

14.  In passing, we note that the Judge mistakenly stated that the Applicant did not state any error of law, procedural unfairness or irrationality of the Board’s Decision in the proceedings before the Judge. This mistake does not, however, affect the Judge’s reasoning for refusing to grant leave to apply for judicial review.

15.  The Applicant’s appeal against the Order has no merit, and is dismissed.

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

[2] See §§4-17 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 §§2, 3 and 5 of the Proposed Grounds in the Form 86.

[8] See §4 of the Proposed Grounds in the Form 86.

[9] See §§3 and 6 of the Proposed Grounds in the Form 86.