WAQAS ALI v. TORTURE CLAIMS APPEAL BOARD

CACV 676 /2026, [2026] HKCA 1456

On appeal from [2026] HKCFI 3409

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 676 OF 2026

(ON APPEAL FROM HCAL NO 1518 OF 2021)

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J U D G M E N T

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Hon Kwan VP (giving the Judgment of the Court):

Background

1.  This is an appeal against the decision of Deputy High Court Judge Michael Wong dated 10 June 2026[1] refusing to grant leave for the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning his non‑refoulement claim. 

2.  The applicant is a national of Pakistan.  He had lodged a torture claim which was rejected on 21 September 2012.  He lodged his non-refoulement claim on 19 December 2018.  His claim was based on his fear that his neighbour would harm or kill him upon his return to Pakistan because of a land dispute. 

Decisions of the Director and the Board

3.  By the Notice of Decision dated 26 March 2019, the Director of Immigration rejected the applicant’s non-refoulement claim. His appeal was dismissed by the Board on 28 October 2021[2].

The judge’s decision

4.  The applicant filed a Form 86 on 2 November 2021 to seek leave to apply for judicial review against the decision of the Board. His application was dismissed by the judge on 10 June 2026.

Grounds of appeal

5.  In the notice of appeal and written submissions, the applicant stated the following grounds of appeal:

(1)  The applicant was not given proper notice of hearing so he lost his chance to be heard fairly;

(2)  The judge did not apply anxious scrutiny;

(3)  The judge set the bar too high at the leave stage; and

(4)  The Board did not analyse the issue of state protection.

Legal principles

6.  The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14. 

Analysis 

Ground 1

7.  The court sent the notice of hearing to the applicant’s address (which is the same address provided by the applicant in his notice of appeal) by post on 8 May 2026.  It is the duty of a litigant to give the court an address to which correspondence or notice can come to his attention in a timely manner.  The consequence of any delay or failure occasioned by the ineffectiveness of such an address would fall on the shoulder of the litigant (Re Hasmi Rizwan Imran [2018] HKCA 439, at §15).  Under the circumstances of this case, there is no unfairness for the judge to deal with the application on paper when the notice of hearing was sent to the applicant’s address and he failed to attend the hearing as scheduled.

8.  In any event, the applicant was given a chance to make oral submissions at the present hearing.  He informed the court he married a Chinese lady 18 months ago.  We do not consider he has made any submissions of substance which may assist the prospect of success of his intended judicial review and/or the present appeal.

Ground 2

9.  The applicant complained that the judge did not apply anxious scrutiny.  It is established that 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 his leave application before the Court of First Instance, the applicant did not put forward any ground against the Board’s decision.  The judge has already provided his analysis and reasoning for finding no error of law, procedural unfairness or irrationality in the Board’s Decision.

10.  In the present appeal, the applicant submitted that the court should have looked carefully at how the credibility findings were reached, whether the procedure before the Board was fair, and whether the Board applied the right legal test.  However, he has not provided any particulars or evidence in support to show any error or unfairness in the Board’s decision. 

Ground 3

11.  The applicant submitted that if the judge had applied the correct standard, he should have found that his case was at least arguable so leave should have been granted.  As mentioned, he did not provide any ground against the Board’s decision in his leave application.  His assertions against the Board are not supported by evidence.  We cannot see any prospect of success in his intended judicial review against the Board’s decision.  The judge’s decision in dismissing his leave application is well founded.

Ground 4

12.  As correctly acknowledged by the applicant, the Board was not obliged to assess the issue of state protection when it found that the applicant would face no real risk of harm in Pakistan.  The applicant argued that the question of state protection would become important if the credibility findings were flawed.  However, he failed to provide any evidence to refute the Board’s finding on credibility and on the risk of harm he might face in Pakistan.  Therefore, this ground is bound to fail.

Disposition

13.  For the above reasons, the applicant failed to demonstrate that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong. None of the grounds of appeal are of merit.

14.  We therefore dismiss the appeal.

[1]  [2026] HKCFI 3409

[2]  The Board’s Decision can be viewed in the following hyperlink:

  https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2021/HCAL001518_2021_files/the_Board's_Decision.pdf