RE HUSSAIN GHAFOOR

CACV 806/2025, [2026] HKCA 667

On appeal from [2025] HKCFI 4302

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 806 OF 2025

(ON APPEAL FROM HCAL 830/2020)

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J U D G M E N T

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Hon Barma JA (giving the Judgment of the Court):

1.  This is an appeal against the decision of Deputy High Court Judge (Non-refoulement Claims)  Lewis Law (“the Judge”)  given on 18 September 2025[1] (“the Leave Decision”)  refusing to grant leave for the applicant to apply for judicial review. The intended judicial review[2] was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”)  dated 27 April 2020 (“the Board’s Decision”)  dismissing the applicant’s appeal against the decision of the Director of Immigration dated 23 July 2018 rejecting the applicant’s non-refoulement claim.

2.  The applicant’s background, the basis of his claim and the Board’s reasons in reaching the Board’s Decision have been set out therein[3] as well as by the Judge in the Leave Decision at [2], which will not be repeated.

3.  After considering the documents filed by the applicant as well as his oral submissions made at the hearing of the leave application, the Judge dismissed the application for the reasons stated at [3]-[4] of the Leave Decision.

Appeal to this court

4.  By a Notice of Appeal dated 29 September 2025, the applicant contended that the Judge failed to properly consider the fact that the authorities in his country would not be able to protect him from his enemy.  The applicant stated that he feared for his life should he be forced to return to Pakistan.  Finally, the applicant claimed, without elaboration or providing particulars, that there was a “failure to consider BOR 2 and 3 risk”.

5.  By written submissions dated 25 February 2026, the applicant essentially repeated his complaints as stated in the Notice of Appeal, and he also made numerous complaints without elaboration or particulars, such as (i) the Judge applied “an incorrect test for non-refoulement”; (ii) the Board acted outside the scope of “the Immigration Ordinance/USM by misinterpreting statutory thresholds or applying an incorrect legal test”; and (iii)  that there was inadequate opportunity for him to present evidence (without specifying what such evidence might be), and that there was a “failure to consider submissions”.

6.  We heard the appeal on 1 April 2026, at which the applicant appeared in person.  At the hearing, the applicant stated that he “cannot go back” to his home country as he had concerns about his safety.

Discussion

7.  As this court has often stated, an appeal to the Court of Appeal is not a fresh application for judicial review.  It is necessary to identify some error on the part of the judge that would justify this court in intervening: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  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.  An appeal is not the occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but were not raised before the judge.  In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and the court will only reverse that decision if an appellant could demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

8.  The applicant has failed to identify any error on the part of the Judge and thus failed to raise any viable ground of appeal. The points advanced by the applicant were bare assertions unsupported by particulars or evidence.  General assertions of fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6].

9.  In the present case, the applicant claimed that if refouled, he would be harmed or killed by members of the Pakistan People’s Party (“PPP”)  and the Pakistan Muslim League (N)  due to his switching of allegiance with the Pakistan Tehreek-e-Insaf political party (“PTI”).  The Board found on the facts and evidence that although the applicant could have been a supporter of PPP at the material times and had assisted the party, he was not a member of that party and could not have switched allegiance to the PTI in 2012 as claimed (Board’s Decision, [70]).  The applicant was therefore unable to establish a material fact, or facts, which pertained to and which formed the basis of his claim of fear of harm.  In any event, the Board was of the view that there were suitable options of internal relocation available to the applicant, which would minimise the risk of harm, if any.  These were factual findings open to the Board on the evidence, and were sufficiently canvassed and considered by the Judge in the Leave Decision at [3]-[4].  We see no basis to interfere.

10.  We also note that although the applicant asserts that there was a failure to consider the BOR 2 and BOR 3 risks, this was not a ground relied on in his Form 86.  Moreover, these risks were clearly considered and rejected by the Board for the reasons which it gave. 

11.  The applicant has failed to demonstrate how the Board had acted unlawfully or procedurally unfairly in reaching its Decision, or how such Decision could be said to be Wednesbury unreasonable.

12.  As we have noted, the applicant advanced no viable grounds of appeal against the Judge’s decision.  There is therefore no merit in the appeal and we dismiss the appeal accordingly.