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

CACV 247/2026, [2026] HKCA 1128

On Appeal From [2026] HKCFI 1235

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 247 OF 2026

(ON APPEAL FROM HCAL NO 377 OF 2022)

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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 (Non-Refoulement Claims) Calvin Cheuk (“Judge”) on 10 March 2026 dismissing the applicant’s application for leave to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”) dated 25 April 2022.  In that decision, the Board upheld the decision of the Director of Immigration (“Director”) dated 25 May 2021 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Pakistan born in 1995 and his claim was made on the basis that if he returned to Pakistan, his maternal uncle (Qasim) and cousins would harm or kill him due to 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 refusing the application: see [6] – [9] of the Form CALL-1.

Appeal to this Court

3.  On 16 March 2026, the applicant filed his Notice of Appeal against the Judge’s decision.  His stated grounds of appeal were, essentially, that the decision was unfair like that of the Board and the Director, that his life was still under threat in his home country, and that his case had not been determined fairly.

4.  However, on 30 April 2026, the applicant filed a letter request for withdrawal of his appeal, as he wanted to return to his country.  As the applicant is requesting for his appeal to be withdrawn and he did not lodge any written submissions, the scheduled hearing of his appeal was vacated pursuant to the directions of the Court.  We shall determine the appeal on the basis of the available documents and materials.

Discussion

5.  Although the applicant has made a written request for the withdrawal of his appeal, we shall nevertheless briefly discuss the merits of his appeal.

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 the dispute was of a private nature without involvement of the state, the ill-treatment did not attain the minimum level of severity, reasonable state protection would be available, and internal relocation to other cities 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. The applicant has failed to show any reasonably arguable public law error in relation to the Board’s decision.

8.  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.  We are not satisfied that there is any error in the Judge’s decision.

9.  Pursuant to the applicant’s request, and for these reasons, the applicant’s appeal is dismissed.