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

CACV 158/2026, [2026] HKCA 822

On Appeal From [2026] HKCFI 740

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 158 OF 2026

(ON APPEAL FROM HCAL NO 486 OF 2021)

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J U D G M E N T

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Hon Lisa Wong J (giving the Judgment of the Court):

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge (Non-refoulement Claims) Val Chow (“Judge”) on 11 February 2026 refusing to grant the applicant, a national of Pakistan, extension of time for applying for leave to apply for judicial review as well as his application for leave for judicial review (“Judge’s Decision”). The intended judicial review sought to quash the decision of the Torture Claims Appeal Board / adjudicator of the Non-refoulement Claims Petition Office (“Board”) dated 27 October 2020 (“Board’s Decision”), which upheld the decision of the Director of Immigration (“Director”) dated 18 August 2018 rejecting the applicant’s non-refoulement claim.

2.  The applicant’s claim was made on the basis of fears of being (1) harmed or killed by 2 individuals called Malik and Habib due to the applicant’s involvement in an investment scam and (2) arbitrarily detained and prosecuted in relation to such scam. Details of the applicant’s background, the circumstances giving rise to his said alleged fears, the arguments advanced by him before the Board and the Board’s reasons for rejecting his appeal are all set out in the Board’s Decision[1]. For the grounds advanced by the applicant in support of his application for leave to apply for judicial review and the Judge’s reasons for refusal, see [5] – [13] of the Form CALL-1.  

Appeal to this Court

3.  By the notice of appeal filed herein on 24 February 2026, the applicant appealed against the Judge’s Decision. However, the applicant did not set out any ground of appeal, only indicating that he would provide written submissions to the court and explain his late application for leave for judicial review.

4.  The applicant has not provided any explanation for the delay in filing his application for leave to apply for judicial review. In his written submission dated 6 March 2026, the applicant referred to the law relating to subsequent claims under section 37ZO of the Immigration Ordinance (Cap 115) (which is irrelevant to the present case). He further asserted that there are ongoing threats and harassment against him; that he has new supporting documents; and that there would be a real risk that he would be convicted if refouled.

5.  At the hearing, the applicant had nothing further to add.

Discussion

6.  In the present case, the applicant was late for more than 2 months when he filed his Form 86. He did not provide any explanation for the delay in either his Form 86 or supporting affirmation. At the hearing before the Judge, the applicant claimed that he did not receive the Board’s Decision in time, without providing any particulars. Where the explanation of delay is unsatisfactory, the court will not extend time unless the intended application for judicial review has real prospects of success.

7.  In assessing the merits of an appeal against a refusal of leave to apply for judicial review, it must be borne in mind that the primary decision-makers in a non-refoulement claim are the Director and the Board. They alone assess the evidence and find relevant facts. An application for leave for judicial review does not provide a further avenue of appeal. The court will not re-assess the non-refoulement claim. It will intervene by way of judicial review only for errors of law, procedural unfairness or irrationality. An appeal against a refusal of leave to apply for judicial review is not the occasion for the Court of Appeal to examine the decision of the Board afresh as if the appeal were a fresh application for leave for judicial review. This court is concerned with the decision of the judge at first instance, which it will consider in light of the grounds of appeal raised by the applicant. The Court of Appeal shall interfere only if the judge had erred in law, failed to take into account a relevant matter or was otherwise plainly wrong. If no such error is shown, the appeal should be dismissed. In support, 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].

8.  The Board found no real risk of harm to the applicant upon refoulement because it found him to be an incredible witness, having regard to his reluctant conduct at the oral hearing before the Board, his previous obstruction of the Director’s investigation, his long delay before surrendering to the authorities after entering Hong Kong illegally, and the unsatisfactory account of the whereabouts of his original and replacement passports. Aside from the existence of the notorious Ponzi scheme in Pakistan, the Board also found other core elements of the applicant’s claim for non-refoulement protection to be incredible. In particular, the Board did not accept that the applicant was involved in the investment scam or the subsequent ensuing events. Despite the abovementioned findings justifying dismissal of the applicant’s appeal, the Board went on to consider but found no real risk of harm to the applicant upon refoulement because (1) the monetary disputes between the applicant and his adversaries were private in nature; (2) reasonable state protection would be available; and (3) internal relocation to Karachi would be a viable option for the applicant. These are findings of fact open to the Board on the evidence it received and for the reasons it gave. The applicant has failed to show any or any reasonably arguable public law error in the Board’s Decision.

9.  Equally, the applicant has not demonstrated any error in the Judge’s Decision. We are not satisfied that there is any error in the Judge’s Decision.

10.  The applicant’s appeal is accordingly dismissed.