RE KHAN YOUSAF

CACV 228/2026, [2026] HKCA 983

On Appeal From [2026] HKCFI 1233

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 228 OF 2026

(ON APPEAL FROM HCAL NO. 332 OF 2022)

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J U D G M E N T

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Hon Cheng J (giving the Judgment of the Court):

Introduction

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge (Non-Refoulement Claims)  Calvin Cheuk (“the Judge”)  given on 10 March 2026[1] refusing his application for leave to apply for judicial review against the decision dated 15 March 2022 of the Torture Claims Appeal Board (“the Board”).  The Board had dismissed his appeal against the decision dated 31 May 2021 of the Director of Immigration (“the Director”)  which rejected his non-refoulement claim having regard to the torture risk,[2] BOR 3 risk,[3] persecution risk,[4] and BOR 2[5] risk grounds.

Background

2.  The applicant is a national of Pakistan born in 1982. He entered Hong Kong illegally on 2 March 2020.  On 15 September 2020, he surrendered to the Immigration Department and lodged his claim for non-refoulement protection.  A removal order was served on him on 7 October 2020.  He was released on recognisance on 16 October 2020.  His non-refoulement claim was made on the basis that if he returned to Pakistan, he would be harmed or killed by his paternal uncle “Mesal” who opposed the applicant’s intended sale of a piece of farmland passed down by the applicant’s late grandfather.   Details of the applicant’s background, the basis of his claim and the arguments advanced before the Board as well as the Board’s reasons for rejecting his appeal were set out in the Board’s decision.[6] 

3.  Essentially, the Board found that the applicant failed to establish the core elements of his claim.  First, there were inconsistencies in his written and oral testimony, where the applicant claimed to be the sole heir of the farmland but admitted at the hearing that he was only a co-owner with 9 other siblings.[7] He was unable to explain why the title of the farmland was not changed to his father’s name after he acquired the land[8].  Second, his claim about Mesal’s powerful and political connections were sketchy and unsupported by particulars.[9]  Third, his evidence was implausible in many aspects; for example, it was implausible for Mesal to hold deep and long-lasting grudges against the applicant when Mesal was already in possession of the farmland and suffered no loss from the applicant’s attempts to sell the farmland.[10] It was implausible for the applicant to stay in his home village for a month despite the alleged violent and spiteful attacks from Mesal and his men.[11]   Further, the Board found that the applicant’s inexcusable delay in lodging the non-refoulement claim had further undermined his credibility.[12]  Even assuming that the applicant’s allegations were true, the Board found that he had failed to seek state protection which was likely to be available to him in Pakistan on the basis of country-of-origin information (“COI”).[13]  The Board assessed that internal relocation to Karachi or other cities would be reasonable and a practical option for the applicant.[14]   Ultimately, the Board found that the applicant had failed to satisfy the threshold requirements entitling him to protection under any of the applicable grounds. 

The Judge’s decision

4.  The Judge considered the grounds raised by the applicant in support of his application for leave to apply for judicial review (which was simply that he did not agree with the Board’s Decision)  and dismissed the application for the reasons set out in [4] to [7] of the Form CALL-1 dated 10 March 2026.  Essentially, the Judge noted that the Board considered the applicant’s evidence and gave comprehensive reasons for its findings, which it was entitled to make; the applicant had not identified any grounds in support of his application for leave to apply for judicial review; and no errors of law, procedural errors or irrationality could be found in the Board’s decision.

This appeal

5.  By a Notice of Appeal filed on 11 March 2026, the applicant appeals against the Judge’s decision. He did not set out any grounds of appeal except to state that he disagreed with the decision of the Judge, alleging that he failed to consider the severe problems in his country and that he would be killed by his enemies if he returned to Pakistan.  

6.  The applicant lodged written submissions in which he repeated the basis of his claim and the risk of harm, and further stated (inter alia)  that (1)  the decision has the effect of finally disposing of the applicant’s claim rendering him liable to be removed such that the high standard of fairness should apply as his life and limb are in jeopardy and the applicant’s fundamental human right not to be subjected to torture is involved; (2)  the Board and the Director failed to give reasons for their decisions; (3)  the Board failed to give him sufficient chance to arrange the relevant evidence to prove his claim; (4)  the Judge failed to consider the procedural unfairness and irrationality and unreasonableness in the Board’s decision; (5)  the Board relied on source of news which was not officially recognised or was simply hearsay, and failed to evaluate whether there exists a pattern of gross and mass violation of human rights in his country.

7.  At the hearing, the applicant indicated that he had nothing to add to his submissions in support of his appeal. He said that he had high blood pressure and medical services provided in Pakistan were not that good. He would be ready to go back to Pakistan once his blood pressure problem was resolved.

Our decision

8.  In assessing the merits of the appeal, we 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.

9.  It is well-established that 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 as they are primary decision makers. The Court, in its supervisory role, will not intervene by way of judicial review unless there are errors of law, procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022.

10.  The Board’s findings of fact, as summarised earlier, were open to the Board based on the evidence it received and for the reasons it gave.   The applicant did not put forward any ground before the Judge to challenge these findings of the Board.

11.  The grounds advanced by the applicant and his submissions in this appeal were general assertions unsupported by particulars. They did not engage with the reasons of the Board in rejecting his evidence and claims, and the applicant did not show how they were relevant to his claim.  They did not show any reasonably arguable legal error, procedural unfairness or irrationality in the Board’s decision as observed by the Judge.   

12.  It is obviously incorrect to suggest that the Board and the Director failed to give reasons for their decisions. It is also incorrect for the applicant to allege that he was not given the opportunity to arrange his evidence.   There is no suggestion that the applicant had sought to adduce evidence which was not already before the Board.  His evidence and materials in support of his claim were fully considered by the Board, as apparent from its decision.   He has not identified what are the matters the Board should have, but had failed to consider.  

13.  Further, the Board set out the COI from a variety of sources pertaining to each facet of the applicant’s claim and explained its relevance.  The applicant’s assertion that the Board failed to consider updated COI or that it relied on unreliable hearsay evidence cannot stand in light of the Board’s comprehensive analysis of the COI.   

14.  Equally, the applicant has not been able to demonstrate with particulars any error in the reasoning of the Judge or advance any viable ground of appeal against the Judge’s decision.  We are satisfied that the Judge gave proper and adequate reasons for his holding that the intended judicial review had no prospect of success.  There is no proper basis for us to disturb the Judge’s decision.  

15.  Accordingly, we dismiss the appeal.