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

CACV 712/2025, [2026] HKCA 701

On Appeal From [2025] HKCFI 3879

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO.712 OF 2025

(ON APPEAL FROM HCAL NO. 655 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)  :

Introduction

1.  This is the Applicant’s appeal against the order of Deputy High Court Judge (Non-Refoulement Claims)  YW Hew (“Judge”)  dated 1 September 2025 (“Order”)  dismissing his application to for leave to judicially review the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“Board”)  dated 14 July 2017 (“Board’s Decision”)  whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“Director”)  dated 19 August 2016 (“Director’s Decision”)  refusing to re-open the Applicant’s claim which was treated as withdrawn as he failed to file a Non-refoulement Claim Form (“NCF”).

Background

2.  The Applicant is a national of Pakistan.  He made a non-refoulement claim with the Immigration Department by letter on 19 May 2008. By reason of the Applicant’s failure to return a completed NCF, his application was treated as withdrawn on 21 November 2015 by the Director.  Some 8 months later, the applicant wrote to the Immigration Department seeking to re-open his non-refoulement application, but was turned down by the Director’s Decision. The Applicant’s appeal against the Director’s Decision was rejected by the Board’s Decision.  Details of the Board’s reasons for rejecting the applicant’s appeal can be found in the Board’s Decision, the hyperlink to which can be found in the Form CALL-1 dated 1 September 2025 (“Form CALL-1”), [1].  

3.  The Applicant’s application for leave to apply for judicial review was not made within the statutory timeframe of 3 months from the Board’s decision.  After considering the length of the delay, the reason for the delay, the merits of the intended application, and prejudice to public administration[1], it was dismissed by the Judge and details of the Judge’s reasons can be found in the Form CALL-1. 

Grounds of Appeal

4.  By a Notice of Appeal filed on 9 September 2025, the Applicant seeks to appeal the Judge’s decision to this Court.  For the grounds of appeal, the applicant states that :

“I disagree with the decision maker authorities. The decision made by the Director of Immigration, As well as the decision made by the Adjudicator of the Torture claim Appeal Board. There is no proper investigation in my claim. My life still in danger in my home land.” (sic)

5.  In the Applicant’s skeleton argument lodged on 18 March 2026, he complains for the first time that he was not provided with legal or language assistance.  He alleges generally that the Board unlawfully fettered its discretion and acted in a procedurally unfair manner, and its decision was unreasonable or irrational in the public law sense and was a result of procedural errors.  He also alleges that the authorities acted in a discriminatory manner towards non-refoulement claimants.  

6.  The Applicant failed to appear at the hearing of this appeal.

Legal Principles

7.  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)).

8.  The assessment of evidence, country of origin information, 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.

Discussion and Disposition

9.  The Applicant’s complaint about the lack of legal and language assistance is a new point which was not raised in his application below.  He is not entitled to raise it for the first time in the Court of Appeal.  In any event, it has no merit.  As a matter of fact, the Applicant was granted free legal assistance from the Duty Lawyer Service for his claim before the Director, but it was subsequently declined by him as recorded in the Board’s Decision, [7].

10.  As a matter of law, a non-refoulement claimant is not entitled to free legal representation at all stages of the process, and the high standard of fairness required by law would not entail an interpretation service to be made available at any time as the applicant desired.  See Re Gurnishan Singh [2018] HKCA 704 at §§11 and 13.

11.  It is incumbent on the Applicant to identify with sufficient particulars any errors allegedly made by the Judge.  In our view, the matters set out in the Notice of Appeal and the Applicant’s skeleton argument are without substance, do not engage the reasons given by the Judge and do not constitute any viable grounds of appeal.  We see no basis to interfere with the Judge’s decision.

12.  The applicant’s appeal is devoid of merits.  We dismiss it accordingly with no order as to costs.