RE WARIS MUHAMMAD

CACV 38/2026, [2026] HKCA 494

On Appeal From [2026] HKCFI 92

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 38 OF 2026

(ON APPEAL FROM HCAL NO. 44 OF 2021)

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J U D G M E N T

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Hon Chu VP (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) Vincent Lung (“the Judge”) given on 7 January 2026[1] refusing his application for leave to apply for judicial review against the decision dated 20 October 2020 of the Torture Claims Appeal Board (“the Board”) dismissing his appeal against the decision dated 26 June 2019 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 1995.  He entered Hong Kong illegally.  On 27 December 2017, he surrendered to the Immigration Department.  In 2019, he made a non-refoulement claim, which was based on a fear of being harmed or killed by two men from his village, Rab Nawaz and Shaukat, due to a land dispute.  Details of the applicant’s claim and the grounds he advanced before the Board have been set out in the Board’s decision[6] .

3.  The Director rejected the applicant’s claim.  Although the applicant’s notice of appeal was filed late, the Board accepted the appeal.  Despite being invited by the Board to address the issue of relocation and to explain why he could not relocate within Pakistan, the applicant did not provide any response.  The Board decided not to hold an oral hearing for the appeal, being satisfied that it was reasonably clear that the applicant had provided everything he wished and it was appropriate to proceed without an oral hearing.

4.  In its decision, the Board accepted that the applicant had a land dispute resulting to an assault to him and his brother, which caused him to leave his home area for Karachi and eventually for Hong Kong.  The Board, however, found the evidence did not establish that the two men continue to have an interest in pursuing and harming him.  The Board also considered the applicant could reasonably relocate within Pakistan, which would negate or reduce any risk of harm he might face.  The Board concluded that none of the applicable grounds for affording protection apply, having regard to the absence of real risk of harm to the applicant, or substantial risk of him being subject to torture or arbitrary deprivation of life, and the applicable legal principles.  

The Judge’s decision  

5.  By a Form 86 filed on 12 January 2021, the applicant applied for leave to judicially review the Board’s decision.  The grounds relied on by the applicant to challenge the Board’s decision are: (1) the Board failed to make sufficient enquiries before its determination; and (2) the applicant was not given sufficient opportunity to present the relevant evidence to the Board.

6.  The Judge heard the application on 15 October 2025.  By a Form CALL-1 dated 7 January 206, the Judge refused to give leave to apply for judicial review.  In summary, the Judge considered: (1) there was no legal error or procedural unfairness in the Judge’s decision not to hold an oral hearing; (2) the applicant had been provided with fair and appropriate opportunity to present his evidence and arguments: (3) the Board had considered all the evidence; and (4) the Board was entitled to conclude that internal relocation was available to the applicant.  The Judge held that the intended judicial review was not reasonably arguable and dismissed the application.  

This appeal

7.  By a Notice of Appeal filed on 16 January 2026, the applicant appeals the Judge’s decision to this Court.   The grounds of appeal state that the applicant disagrees with the decisions of the Director and the Board, and his case was not properly investigated and it was not determined fairly.

8.  The applicant has lodged written submission, which state that there has been a lack of legal and language assistance and the Board’s decision is irrational and procedurally unfair and fails to meet the greater care and duty owed to a self-represented claimant, and the discriminatory act of the authorities in the quick disposal of non-refoulement cases is unacceptable.  Notably, the applicant has not identified any errors in the Judge’s decision.

9.  At the hearing, the applicant did not have anything to add to what was in the Notice of Appeal and his written submissions.

Our reasons for decision

10.  In assessing the merits of the appeal, we shall 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.

11.  In the present case, the Board determined the appeal on paper without a hearing, having taken into account the relevant legal principles, the applicant’s failure to respond to its invitation to address the issue of internal relocation, and there was no indication that the applicant had any further information to provide on his claim.   We agree with the Judge that the Board did not commit any error of law in this regard. 

12.  On the evidence presented by the applicant, the Board accepted the factual basis of his claim.  It, however, found the evidence did not show the two men have any continuing, long-term or sustained interest in harming the applicant upon his return to Pakistan as the threats and violence to the applicant were limited to a brief period in 2017.  The Board also found that internal relocation was reasonably viable, having regard to the available country of origin information and that it was unlikely that the applicant would be pursued in other parts of the country.  These are findings of fact open to the Board on the evidence it received and for the reasons it gave.  It is thus open to the Board to assess that there was no real risk of harm to the applicant entitling him to non-refoulement protection under any of the applicable grounds.  We see no proper basis for the court to interfere with the Board’s findings.

13.  We do not accept the applicant’s submission that there had been procedural unfairness in the proceedings before the Board or that the Board made its determination in haste.  It is clear from its decision that the Board reached its assessment on the risk of harm to the applicant after full consideration and careful analysis of the applicant’s evidence and the country of origin information.  

14.  As to the complaint of lack of legal and language assistance, as a matter of law, it is not the case that a non-refoulement claimant is entitled to free legal representation at all stages of the process, and that the high standard of fairness required by law does not entail an interpretation service made available to an applicant at all times as he desires: Re Zunariyah [2018] HKCA 14 at [18]; Re Zahid Abbas [2018] HKCA 15 at [11] and Re Tariq Farhan [2018] HKCA 17 at [11].  The applicant has not indicated what further matter or argument he would have put forward to support his claim if he had legal or language assistance in the process before the Board.  It is also pertinent to note that he did not provide anything further in his application for leave to apply judicial review and in the hearing before the Judge during which he was assisted by an interpreter.  We further note that all the court documents filed in this appeal and in the court below were in English, which suggests that the applicant has access to language assistance of his own.   In short, we do not agree that the non-availability of legal representation or language assistance in the processes before Board or the court to amount to any procedural unfairness.

15.  As the applicant has not demonstrated any error in the decision of the Judge or advanced any viable ground of appeal against the Judge’s decision, we dismiss the appeal.

[1] [2026] HKCFI 92

[2] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.

[3] This refers to risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[4] This refers to the risk of persecution with reference to the non‑refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.

[5] This refers to the risk of being arbitrarily deprived of life under article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[6] https://legalref.judiciary.hk/doc/ judg/html/vetted/other/en/ 2021/HCAL000044_2021_files/ the_Board's_Decision.pdf