HUSSAIN NASIR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 98/2026, [2026] HKCA 610

On Appeal from [2026] HKCFI 534

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 98 OF 2026

(ON APPEAL FROM HCAL NO 323 OF 2021)

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J U D G M E N T

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Hon H. Au-Yeung J (giving the Judgment of the Court):

1.  This is the applicant’s appeal against the order of Deputy High Court Judge Michael Wong (“the Judge”)  dated 28 January 2026 by which his application for leave to apply for judicial review (“the Leave Application”)  against the decision of the Torture Claims Appeal Board (“the Board”)  dated 3 March 2021 (“Board’s Decision”)  was dismissed. By that decision, the Board upheld the decision of the Director of Immigration (“the Director”)  rejecting the applicant’s non-refoulement claim.

2.  The applicant is a national of Pakistan.  The basis of his non-refoulement claim had been set out in detail in the Board’s Decision, which may be viewed online via the hyperlink contained in [3] of the CALL-1 Form.  In gist, he claims that if he returns home, he will be ill-treated by his brother-in-law and be sent to Afghanistan for war.

3.  In [19] to [42] of the CALL-1 Form, the Judge gave detailed reasons for refusing the Leave Application.

4.  By a Notice of Appeal filed on 4 February 2026, the applicant appeals against the Judge’s decision.  He contends that:

“I am disagree with the decision maker authorities. Sir decision maker not give me justice, they were give totally unfair decision. They not proper investigation in my case. Sir in my home country still have my life threatening - our army want use me to attack to [illegible] against country. Army want I make put bum (sic)  with my body. I don't want go back my country. I not want die.”

5.  This appeal was scheduled to be heard on 26 March 2026.  As the applicant has failed to lodge any skeleton argument in support of his appeal in accordance with the directions given by the Registrar of Civil Appeals on 4 February 2026, he is deemed to have waived his right to have an oral hearing of the appeal and elected to have the 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.

6.  The general approach of this Court in dealing with appeals in non-refoulement cases has been set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  In particular, in an appeal against refusal of leave to apply for judicial review in non-refoulement cases, this Court 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.  This Court’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst 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 is an error of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022 at [13].

8.  In the Notice of Appeal, the applicant contends that the decisions were unfair, that there was a failure to investigate his claim and that it would be unsafe for him to return to Pakistan.  The Judge had given detailed reasons why the Board had properly investigated the applicant’s claim and found that it would not be unsafe for him to return.  The grounds of appeal are not related to any error by the Judge and are therefore not viable. 

9.  In the premises, this appeal is dismissed with no order as to costs.