KHAN HANIF v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 264/2025, [2025] HKCA 1006

On Appeal From [2025] HKCFI 1592

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 264 OF 2025

(ON APPEAL FROM HCAL NO 3785 OF 2019)

____________________

____________________

____________________

JUDGMENT

____________________

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 (Non-refoulement Claims) Philips Wong (“the Judge”) dated 22 April 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 13 December 2019, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 10 January 2019.

BACKGROUND

2.  The Applicant is a national of Pakistan.  He claimed that he entered Hong Kong illegally on 6 October 2015.  He was arrested by the police on the same date[1]. Afterwards, he lodged a non-refoulement claim on the basis that, if refouled, he would be harmed or killed by his paternal uncle (Mohammad Nawaz) and two sons of his paternal uncle (Zeeshan and Shehryar) because he refused to transfer to them his share of a piece of agricultural land in his home village.  He claimed that they were supporters of a political party or a religious party in Pakistan, and that he had been attacked on three occasions between 2014 and 2015 because of the land dispute with them[2].

3.  By a Notice of Decision dated 11 January 2019 (“the Director’s Decision”), the Director dismissed the Applicant’s non-refoulement claim on all applicable grounds:persecution risk[3], BOR 2 risk[4], BOR 3 risk[5], and risk of torture[6]. 

4.  The Applicant appealed against the Director’s Decision to the Board.  On 13 December 2019, the Board dismissed the Applicant’s appeal, and confirmed the Director’s Decision (“the Board’s Decision”).  In its decision, the Board found that the Applicant’s evidence was suspicious and unreliable (§63).  The Board considered that his land dispute was private in nature without any state element, and state protection was available to him in his home country (§§65, 83, 100 and 101).  The Board concluded that there was no real risk that he would be subjected to any of the proscribed ill-treatment should he return to his home country.     

THE JUDGE’S DECISION

5.  On 19 December 2019, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision.  No ground for seeking relief was given in the Form 86 or his supporting affirmation of the same date.  

6.  On 22 April 2025, the Judge gave his decision refusing to grant leave to apply for judicial review, for the following reasons:

“[7] I have considered the Board’s Decision in details. I do not find any error of law, procedural unfairness or irrationality. Neither has the Applicant been able to demonstrate any of the same. There is nothing to indicate that the Board had failed to take into account any relevant matters. The Board’s Decision was comprehensive with adequate reasons provided. In particular, the Board had properly analyzed the evidence given by the Applicant and came to the conclusion that his evidence was suspicious and unreliable (see paragraphs 5 to 35, 39, 60 to 63, 84, 86, 90 to 93 and 102 of the Board’s Decision). The Board was entitled to come to such findings. The Board’s Decision satisfies the enhanced Wednesbury test and is not Wednesbury unreasonable or irrational. I am not satisfied that the Applicant’s intended challenge of the Board’s Decision is reasonably arguable with any realistic prospects of success. Accordingly, I refuse to grant leave for judicial review.

[8]        Leave application of this sort is meant to be a filtering process and I am not expected to give elaborated reasons for my decision (see Re Zunariyah [2018] HKCA 14, at §23).  Suffice for me to state that in reaching the decision, I have considered all the relevant documents before me.”

THIS APPEAL

7.  In his Notice of Appeal filed on 6 May 2025, the Applicant merely stated that he wanted to appeal and he did not agree with the Judge’s decision which he said was unreasonable.

8.  In his written submissions lodged on 29 September 2025, the Applicant repeated the immigration history of himself, and requested the court to save his life.  He asserted that he had more information to provide, but failed to give any particulars or details. 

9.  At the hearing of the appeal, the Applicant had nothing to add to his written submissions.

DISCUSSION

10.  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)).

11.  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.

12.  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. 

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

[1] See §§30 and 36 of the Board’s Decision.

[2] See §§8-10, 16, 20 and 25 of the Board’s Decision.

[3] 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.

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

[5] This refers to the 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.

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