RE RAFIQUE MOON

CACV 990/2025, [2026] HKCA 236

On appeal from [2025] HKCFI 5185

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 990 OF 2025

(ON APPEAL FROM HCAL 1999/2020)

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J U D G M E N T

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

1.  This is an appeal against the decision of Deputy High Court Judge Michael Wong (“the Judge”) given on 31 October 2025[1] (“the Leave Decision”) refusing to grant leave for the applicant to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”) dated 24 September 2020 (“the Board’s Decision”) dismissing the applicant’s appeal against the decision of the Director of Immigration dated 29 November 2017 rejecting the applicant’s non-refoulement claim.

2.  The applicant’s background, the basis of his claim and the Board’s reasons in reaching the Board’s Decision have been set out by the Judge in the Leave Decision at [9]-[11] and [22]-[27], which will not be repeated.

3.  After considering the documents filed by the applicant as well as oral submissions made by him at the hearing of the leave application, the Judge dismissed the application for the reasons stated at [17]-[35] of the Leave Decision.

Appeal to this court

4.  By a Notice of Appeal dated 10 November 2025, the applicant contended (insofar as such contentions relate to the Board/the Board’s Decision and the Judge) that (i) the Judge and the Board failed to take “such argument” into account (without specifying what “such argument” is nor providing any particulars); (ii) the Board failed to make “a sufficient inquiry” before making its Decision (without specifying what such inquiry might be, nor providing any particulars); and (iii) the Board failed to give “a sufficient chance” for the applicant to “arrange evidence” for his claim (without specifying what such evidence might be, nor providing any particulars).

5.  By written submissions dated 7 January 2026, the applicant referred, inter alia, to the well-established principles in ST v Director of Immigration (sic)[2] [2014] 4 HKLRD 277, Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, R v Home Secretary, ex parte Doody [1994] 1 AC 531 and R v Home Secretary, ex parte Bugdaycay [1987] 1 AC 514. 

6.  We heard the appeal on 10 February 2026, at which the applicant appeared in person.  At the hearing, the applicant submitted that his problem in Pakistan persists, and that his enemies were still looking for him.  Notwithstanding that he intended to submit further documents in support of the appeal and asked for more time to do so, his request was refused as those documents have not been considered by the Board nor the Judge in the proceedings below.

Discussion

7.  As this court has often stated, an appeal to the Court of Appeal is not a fresh application for judicial review.  It is necessary to identify some error on the part of the judge that would justify this court in intervening: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  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.  An appeal is not the occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but were not raised before the judge.  In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and the court will only reverse that decision if an appellant could demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

8.  The applicant has failed to identify any error on the part of the Judge and thus failed to raise any viable ground of appeal. The points advanced by the applicant were bare assertions unsupported by particulars or evidence.  General assertions of fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6].

9.  In the present case, the Board found the factual bases of the applicant’s claim or alleged risk of harm to be incredible, as there were inconsistencies and contradictions in material parts of his evidence (Board’s Decision, [15]-[22]).  The Board was not satisfied that the applicant would be at real risk of harm should he be refouled to Pakistan, as the Board found that members of the Pakistan Peoples Party did not (as the applicant alleged) intend to kill or cause serious injury to the applicant, but rather, only to frighten him (Board’s Decision, [21]).  In any event, the Board concluded that state protection and suitable options of internal relocation were available to the applicant in order to minimise the risk of harm, if any. These were factual findings open to the Board on the evidence, and were sufficiently canvassed and considered by the Judge in the Leave Decision at [21]-[35]. We see no basis to interfere.

10.  The applicant has failed to demonstrate how the Board had acted unlawfully or procedurally unfairly in reaching its Decision, or how such Decision could be said to be Wednesbury unreasonable.

11.  Further, there was no attempt by the applicant to elaborate on whether and, if so, how the trite principles referred to in his written submissions had not been applied in the consideration of his leave application by the Judge and in the processing of his non-refoulement claim.

12.  As we have noted, the applicant advanced no viable grounds of appeal against the Judge’s decision.  There is therefore no merit in the appeal and we dismiss the appeal accordingly.