Khan Mohib Ali v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

CACV 215/2025, [2025] HKCA 995

On Appeal From [2025] HKCFI 1397

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 215 OF 2025

(ON APPEAL FROM HCAL NO 2209 OF 2024)

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JUDGMENT

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

1.This is the Applicant’s appeal against the order of Deputy High Court Judge To (“the Judge”) dated 10 April 2025 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 10 October 2024, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 12 July 2024.

BACKGROUND

2.The Applicant is a national of Pakistan.  He claimed that he sneaked into Hong Kong illegally on 28 April 2024.  On 8 May 2024, he surrendered himself to the Immigration Department and lodged a non-refoulement claim on the basis that, if refouled, he would be harmed or killed by his relatives (Sajid Khan and Ali Haider) and two villagers (Asif and Parveen) because of some land disputes with them.  Details of the Applicant’s claim have been summarised by the Judge at §§3-8 of the CALL-1 Form.

3.By a Notice of Decision dated 12 July 2024 (“the Director’s Decision”), the Director dismissed the Applicant’s non-refoulement claim with reference to all applicable risks: risk of torture[1], BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4]. 

4.The Applicant appealed the Director’s Decision to the Board.  On 10 October 2024, the Board dismissed the Applicant’s appeal, and confirmed the Director’s Decision (“the Board’s Decision”).  The Board’s reasons for its decision were summarised by the Judge at §9-15 of the CALL-1 Form, as follows:

“[9] On the basis of authoritative and credible country of origin information (‘COI’), the Board accepted that land disputes are prevalent in rural and urban areas throughout Pakistan, resulting in violence and deaths. However, there are established judicial processes in place for the resolution of land disputes. A person who fears ill treatment by other parties to the dispute will be able to seek effective protection from the authorities and relocation is also generally available. The Board also noted from the Land Portal of 2021 that Pakistan was to set up ‘fast track’ courts to settle land grabbing cases of overseas Pakistanis and that such cases would be settled in 30 days.

[10] The Applicant testified before the Board. He made some new and serious allegations inconsistent with his initial claim and evidence before the Board, which made the Board found him incredible.

[11] His initial claims were focused on Sajid and Ali, but he later introduced Parveen and Asif in his NCF. When asked, he said that his main dispute was with Sajid and Ali, but Parveen and Asif also wanted to kill him. The Board did not accept his explanation because if there were two more people who wanted to kill him, he would have mentioned them in the initial claim.

[12] Initially, he told the immigration officer that he owned the land. He did not mention that his family members were also legal owners of the land. When confronted, he gave vague and inconsistent evidence claiming variously that he owned it, his mother owned it, and his family owned it.

[13] Moreover, he told the Board for the first time that Sajid made a false case of murder against him and caused him to be imprisoned for nine months in 2015 and bribed the police to beat him. He said he had supporting documents, but was unable to obtain them as he was detained in Hong Kong. However, he did not leave Pakistan until 2023. When the Board queried why such a significant claim had not been raised before, he gave no direct answer but asked the Board to put itself in his position. The Board did not accept his explanation. Even though he was detained, he was assisted by a lawyer when he lodged his NCF and he had another opportunity to provide more details of his claim during the screening interview. The Board was of the view that if he had been genuinely detained in 2015 for a false murder charge and assaulted, he would not have failed to mention it at an earlier time. The Board rejected his evidence about the false charge of murder, and considered the introduction of significant new allegations during the hearing, without a reasonable explanation, was indicative of his poor credibility.

[14] When asked why he had to leave Pakistan but his brothers and mother could remain, the Applicant explained that was because he was at the forefront of all the disputes and that his family was safe only because he is not in Pakistan. The Board did not accept his explanation credible and considered it an attempt to overcome the Board’s adverse comments.

[15] The Board accepted his evidence before the immigration officer but not his testimony before the Board, such as the false charge and 2015 detention and that he was at the forefront of the legal disputes.  The Board found the testimony was the Applicant attempt to embellish his family’s legal disputes regarding land to establish a claim for his protection in Hong Kong.  It found even taking his claims at their highest, his evidence indicated that he had only been threatened and his brother was assaulted on one occasion.  He had not seen Parveen since 2012 and never met Asif directly.  Whilst the land disputes may have resulted in some threats directed towards him, there was no evidence suggesting that Sajid, Ali, Asif, or Parveen had any intention to harm him or his family, as they had ample opportunity to do so in the past, but they never did.  In the circumstances, the Board found that there could not possibly be any substantial grounds for finding that he faced a real risk of ill-treatment if refouled to Pakistan.  Applying the law applicable to the non-refoulement protection under the [United Screening Mechanism (‘USM’)] to the above facts, the Board found that the Applicant had failed to establish the factual basis to support his claims for protection under any of the applicable grounds under the USM.  Hence, it dismissed his appeal against the decision in the Notice.”

THE JUDGE’S DECISION

5.On 20 November 2024, 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.  In his supporting affirmation of the same date, the Applicant repeated his claimed fear upon return to his home country, and complained that the Director rejected his claim without making any proper inquiry into or carefully understanding his situation.

6.The Applicant attended a hearing before the Judge on 10 March 2025, and made submissions to challenge the Board’s findings of fact in the Board’s Decision.  He produced to the Judge a bundle of documents, mostly written in the Pakistani language without any accompanying English translation, which he claimed were from the Pakistani court and could support his intended challenge to the Board’s Decision.

7.On 10 April 2025, the Judge refused to grant leave to the Applicant to apply for judicial review, for the following reasons:

“[19] The Applicant’s case before the immigration officer was based solely on the land dispute. Before the Board, he added a new claim that a false charge of murder resulting in his detention for nine months was made against him. The Applicant said that the documents now submitted support that what he had told the Board is true. For convenience, the Court considers them de bene esse, leaving the question of authenticity to be resolved later on if necessary. For the purpose of this application, there is no need to verify their authenticity. This Court assumes they are authentic. Insofar as the documents relating to the land disputes are concerned, the Board accepted the Applicant’s evidence about the land disputes. Thus, the documents would not assist him further in that respect.

[20] As for the false murder charge, the documents supports the fact that the Applicant had been charged with murder and detained for nine months in 2016, not 2015 as claimed. This Court gave the Applicant the benefit of the doubt that the difference in timing is the result of failure in memory which does not damage the Applicant’s credibility or affect the case he was trying to present. However, the documents fully support that a charge of murder had been properly laid against him. The statement of fact presented by the prosecution is that on 29 February 2016, the Applicant and his brother threw wastes in front of their neighbour’s house. When the neighbour protested, the Applicant’s brother pushed him down to the ground and the Applicant hit his head with a brick. Their neighbour died as a result. The Applicant and his brother were charged with murder. Then, on the intervention of the elders of the locality, the deceased’s wife and nephew patched up the matter with the Applicant and his brother. They forgave the Applicant and his brother in the name of Allah and waived their right of Qisas and Diyat before a sessions judge. The Applicant and his brother were then acquitted. The procedures were documented with forensic science report, post mortem report, court documents, statements from the deceased’s wife and nephew, and statement from the elders. The Applicant was acquitted after going through the normal course of prosecution. It is not a case where he was acquitted for want of prosecution, or for witness not coming up to proof as to suggest a false charge. In the absence of specific allegation about the falsity supported with credible evidence, the documents only supported the fact that a charge of murder had been properly laid and properly disposed of by a court of law which resulted in the Applicant’s detention for nine months pending time. They do not support the Applicant’s claim of false charge. These documents were never before the Board. The Board made its finding primarily because of the late allegation and lack of supporting evidence. Even if the documents were available before the Board, they could not have supported the Applicant’s claim for want of evidence of the falsity.

[21] The Applicant complained he was detained for seven months during which time he was not allowed to contact his family and ask them to obtain the documents. Obviously, he was detained because he has no right of entry and he entered Hong Kong illegally. Whether to release him on recognisance is a matter of discretion for the director. The Applicant could have no complaint for his detention. This Court has grave reservation about his complaint that he was not permitted to call his family. But he had access to his lawyer and his lawyer could have done that for him. As for his complaint that his duty lawyer refused to assist him, these are matters privy to him and his lawyer. His complaint is a bare allegations not supported by evidence. It may not be appropriate for this Court to explore this complaint further as it may involve questions of confidentiality and professional privilege. It may well be that his lawyer for the same or other reasons considered the documents could not assist him or he had never told his lawyer about the documents. In any event, the complaint does not raise any issue of procedural unfairness on the part of the Director or the Board.

[22] For the above reasons, his submission disclosed no arguable grounds of judicial review.

Overall scrutiny

[23]  Having rigorously examined the [Board’s] Decision, the papers and the evidence with anxious scrutiny, this Court is satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness.  The Board assessed the Applicants’ claim on the basis of his case as he asserted, except in respect of the false murder charge due to lack of supporting evidence.  These are finding of facts solely for the Board which this Court may not intervene.  It was on that basis that the Board further found the Applicant’s feared ill-treatment was not well-founded.  Then, applying the law applicable to non-refoulement protection to the above finding of fact, the Board came to the conclusion that the Applicant was not entitled to non-refoulement protection under any of the four applicable grounds under the USM.  These are mixed finding of facts and of the law. Insofar as they are finding of the law, the Board is absolutely correct.  There is no error of law in the [Board’s] Decision.  Insofar as they are finding of fact, they are exclusively within the province of the Board, which the Court on a judicial review may not interfere, save when such finding involved error of law, procedural unfairness and irrationality.  The Court could detect no error of law in the [Board’s] Decision.  The [Board’s] Decision does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  Basically, the Applicant failed to discharge his burden of proving his fears and risks.  The [Board’s] Decision is utterly without fault.  The proposed judicial review has no realistic prospect of success.”

THIS APPEAL

8.In his Notice of Appeal filed on 22 April 2025, the Applicant put forward the following grounds of appeal:

“1. The Director’s Decision, it was evident that the director has failed to appreciate or give the proper importance or weightage to the presence of state Acquiescence in the applicant’s case. This has indeed led to an unfair outcome of rejecting the applicant non-refoulement claim.

2. The Applicant submits that the Director, the Adjudicator and the Court have failed to take such argument into account or that the Director has failed to give sufficient weight to such argument before reaching the Decision.

3. The Adjudicator failed to make sufficient enquiring before finalizing the determination. The Adjudicator stated that an Applicant had failed to advice any credible evidence to prove material elements of his claim.

4. Surprisingly, the director in applicant Decision while referring to relevant COI’s kept including meaning which suited the applicant pre-conceived conclusion. This was a clear case of unfair attitude shown by the Director which is enough to render the applicant’s Decision.

5. The grounds of this appeal are that the gravity of the applicant circumstances has noted been weighed or realised by both putative Respondents while considering the applicant’s non-refoulement claim.  The applicant should be given an opportunity to plead his case properly.” [sic]

9.In his written submissions lodged on 6 October 2025, the Applicant alleges, inter alia, that:

(1)  The Judge did not apply the principle of irrationality to the decisions of the Director and the Board[5].

(2)  The Judge did not apply high standards of fairness[6].

(3)  The Judge did not apply the principle of procedural fairness, as the Director and the Board were required to give reasons to justify their decisions[7].

(4)  The Judge did not carefully consider the problems he would face in his home country[8].

(5)  The Judge’s decision was unreasonable[9].

(6)  The Board failed to give him a sufficient chance to provide evidence[10].

(7)  The Board relied on unofficial and hearsay materials[11].

10.The Applicant failed to appear at the hearing of the appeal.

DISCUSSION

11.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)).

12.Further, the assessment of evidence, COI, 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.

13.The Applicant’s complaints raised in the Notice of Appeal and his written submissions against the decisions of the Judge, the Board or the Director are general allegations without particulars, and do not constitute valid grounds of appeal against the Judge’s decision.  Further, Grounds 1 to 4 are directed against the decisions of the Director and/or the Board, not the Judge’s decision.  His complaint under Ground 5 has no substance.  He testified at the hearing before the Board and made new allegations which the Board had considered.  Subsequently, he appeared at the hearing before the Judge, in which he made oral submissions and produced new evidence.  Those submissions and evidence were carefully considered, and properly and correctly dealt with, by the Judge.

14.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. 

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

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

[2] 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.

[3] 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.

[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.

[5] See §§1, 12 and 13 of the Applicant’s Written Submissions.

[6] See §§2, 4 and 10 of the Applicant’s Written Submissions.

[7] See §3 of the Applicant’s Written Submissions.

[8] See §§5 and 6 of the Applicant’s Written Submissions.

[9] See §7 of the Applicant’s Written Submissions.

[10] See §9 of the Applicant’s Written Submissions.

[11] See §11 of the Applicant’s Written Submissions.