MUHAMMAD KHALID v. TORTURE CLAIMS APPEAL BOARD

CACV 1167/2025, [2026] HKCA 80

On Appeal From [2025] HKCFI 5872

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 1167 OF 2025

(ON APPEAL FROM HCAL NO 1872 OF 2020)

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J U D G M E N T

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

1.  This is the Applicant’s appeal against the order of the Deputy High Court Judge Bruno Chan (“the Judge”) dated 2 December 2025 (“the Order”) refusing to grant leave to the Applicant to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 10 September 2020 (“the Board’s Decision”), whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 19 October 2017 rejecting the Applicant’s non-refoulement claim assessed with reference to BOR 2 risk[1].

2.  The Applicant alleges that, if refouled to Pakistan, he will be harmed or killed by his neighbours due to some personal disputes between his family and his neighbours’ family. The Applicant’s background, the basis and procedural history of his claim, the findings of the Board as well as its reasons for dismissing the Applicant’s appeal against the Director’s decision have been set out in detail in the Board’s Decision, and summarised by the Judge in the Judge’s decision (see §§1-11 of the Form CALL-1). We do not propose to repeat them here.

3.  The Judge’s reasons for dismissing the Applicant’s leave application are set out at §§13-16 of the Form CALL-1. In gist, the Judge considered that the Applicant did not have any reasonably arguable basis to challenge the findings of the Board. The Judge found that the Board rejected the Applicant’s claim with the benefit of oral evidence and submission from him at the hearing before the Board on 18 June 2020, and considered the Board’s reasoning to be thorough and detailed. The Judge did not see any errors of law or procedural unfairness in the Board’s Decision.

THIS APPEAL

4.  In his Notice of Appeal filed on 10 December 2025, the Applicant put forward the following grounds of appeal:

“1. The Applicant submits that the Director, the Adjudicator and the Court have failed to take such argument into account or that the Director has failed to give sufficient weight to such argument before reaching the Decision.

2. The Director’s Decision, it was evident that the director had failed to appreciate or give the proper importance or weight to the presence of state Acquiescence in the Applicant’s case. This has indeed led to an unfair outcome of rejecting the Applicant’s non-refoulement claim.

3. The Adjudicator failed to make sufficient inquiry before finalizing the determination. The Adjudicator stated that an [Applicant] had failed to provide any credible evidence to prove material elements of his claim.

4. The adjudicator has failed to give a sufficient chance to the [Applicant] to arrange relevant evidence for his non-refoulement claim as well as his appeal.

5. Surprisingly, the director, in his Decision while referring to relevant [country of origin information]. Kept including meaning which suited his pre-conceived conclusion. This was a clear case of unfair attitude shown by the Director, which in itself is enough to render his Decision void.” [sic]

5.  The Applicant has failed to lodge any written submissions in support of his appeal contrary to the directions given by the Registrar of Civil Appeals on 10 December 2025. Accordingly, he is deemed to have waived the right to have an oral hearing of his appeal and elected to have his appeal disposed of on paper. Having considered the documents before us, we consider that it is appropriate to deal with the Applicant’s appeal on paper without an oral hearing.

DISCUSSION

6.  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)).

7.  Further, 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, at §13. No such error of law or procedural unfairness or irrationality in the decision of the Board is shown in the present case.

8.  The Applicant’s complaints raised in the Notice of Appeal are vague and general, and mostly directed at the decision of either the Director or the Board, but not the decision of the Judge. In any event, they relate to matters falling primarily within the province of the Director and the Board. They do not give rise to any valid ground of appeal.

9.  The Applicant has failed to identify or show any error in the Judge’s decision refusing to grant leave to apply for judicial review, or raise any viable ground of appeal against the Order.

10.  The Applicant’s appeal has no merit, and is dismissed.