Waqas Muhammad v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

CACV 269/2025, [2025] HKCA 994

On Appeal From [2025] HKCFI 1687

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 269 OF 2025

(ON APPEAL FROM HCAL NO 3803 OF 2019)

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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 (Non-refoulement Claims) Martin Wong (“the Judge”) dated 25 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 6 December 2019, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 26 September 2019.

BACKGROUND

2.The Applicant is a national of Pakistan.  He claimed that he sneaked into Hong Kong illegally on 4 July 2019[1].  He was arrested by the police on the same date[2]. By way of a written signification dated 5 July 2019, he lodged a non-refoulement claim.  His claim made in the non-refoulement claim form dated 15 August 2019 was that, if refouled, he would be harmed or killed by two members (Parvez and Rafaqat) of a cricket team of a neighbouring village in his home district because, during a cricket match on 12 October 2018, he broke Rafaqat’s arm when he intervened and tried to save his teammate (Ibrar) in a fight between the two teams.  He claimed that Parvez and Rafaqat were nephews of a member (Tahir Sadiq) of National Assembly of Pakistan (“MNA”). He also claimed that under political influence, the police in Pakistan filed a false murder case against him for the attack on Parvez and the death of Ibrar[3].

3.By a Notice of Decision dated 26 September 2019 (“the Director’s Decision”), the Director dismissed the Applicant’s non-refoulement claim on all applicable grounds: risk of torture[4], BOR 2 risk[5], BOR 3 risk[6], and persecution risk[7].

4.The Applicant appealed the Director’s Decision to the Board.  On 6 December 2019, the Board dismissed the Applicant’s appeal, and confirmed the Director’s Decision (“the Board’s Decision”).  In its decision, the Board noted that the Applicant’s claim based on an alleged fear arising from his involvement in a fight between two cricket teams was wholly different from his initial claim made on 5 July 2019 which concerned a political dispute between him and the MNA of his home district (§21(ii)).  The Board also found contradictions and inconsistencies in the statements he made in the non-refoulement claim form and the records of his interview conducted on 2 September 2019 (§21(iii)). The Board did not consider his evidence to be believable.  Neither did the Board consider his claim for non-refoulement protection to have been made out. In any event, the Board found that state protection was available to him upon his return to Pakistan, and reasonable internal relocation was also an option open to him (§§26-28 and 41-45).

THE JUDGE’S DECISION

5.On 20 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.  In his supporting affirmation of the same date, the Applicant stated that he did not agree with the Board’s Decision, and he wanted to file an application for judicial review against that decision.  He also stated that he could not go back to his home country because his life would be in danger over there.

6.The Judge held a hearing of the leave application on 11 March 2025.  On 25 April 2025, the Judge gave his decision refusing to grant leave to apply for judicial review, for the following reasons:

“[7] At the hearing the Applicant asked for time to submit further evidence that he said was relevant. I directed him to do so by 25 March 2025 and unless he does so, I would proceed to deal the application on paper with no further hearing. He understood. However, by 25 March 2025 he had filed nothing further.

[8] Turning to the [Board’s] Decision, the [Board] correctly identified the applicable principles to the four applicable grounds under the [unified screening mechanism (‘USM’)] [6-17] and carefully considered all the evidence presented by the Applicant before coming to the conclusion that the Applicant’s allegations were not made out [18, 21-23].

[9] The [Board] then proceeded to analyse each of the four applicable grounds under the USM and came to the conclusion that none of them was made out [28-40]. The [Board] further concluded that internal relocation was viable and available to the Applicant in any event [41-45].

[10] All in all, I do not see any errors of law, procedural unfairness or irrationality in the [Board’s] Decision, despite rigorous examination and anxious scrutiny.”

THIS APPEAL

7.In his Notice of Appeal filed on 8 May 2025, the Applicant stated the following:

“[T]he Applicant will face hardship if he is to return back to his home country and that the Torture Claims Appeal Board has significantly relied on the source of news which is not officially recognized, or it is simply hearsay. They have also relied on some cases which are outdated considering the dramatic changes. The lack of credible source of information has resulted in them making groundless speculations.” [sic]

8.In his written submissions lodged on 29 September 2025, the Applicant made some generic submissions on general principles of law relating to the high standards of fairness required in determining non-refoulement claims, but failed to explain how they were applicable to his case. 

9.At the hearing of the appeal, the Applicant told the court that he suffered a rib fracture recently and thus he was late for the hearing.  Other than that, 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 a non-refoulement case, 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.In passing, we note that the Judge, in his decision, stated that the Applicant had failed to submit any further evidence by 25 March 2025 in accordance with the court’s direction.  However, the court record shows that there was a letter dated 24 March 2025 from the Applicant and received by the court on 25 March 2025.  In that letter, the Applicant stated, amongst other things, that there was an arrest warrant issued against him and his enemies could search for him through the “defence system”.  Attached to his letter were 3 documents, namely, (i) a death certificate issued by the Government of Punjab, Pakistan on 18 March 2025 showing a man named Ibrar died from unnatural cause on 18 March 2019 after 1 day of sickness, (ii) a photo showing the face of an injured man, and (iii) the Board’s Decision. 

14.In our view, even if the letter and the attached documents were considered by the Judge, they would not add anything of substance to the Applicant’s leave application.  His assertions relating to the arrest warrant and the alleged defence system were new points not raised in the proceedings before the Board or the Director and, in any event, were not substantiated by any evidence.  It was his own case that he stayed in three different cities in Pakistan after the cricket match incident until his departure from Pakistan on 28 June 2019 without any difficulty (see §§18(iv)-(ix) and 28 of the Board’s Decision).  Even if the death certificate and the photo produced could show the death of the Applicant’s teammate (Ibrar), we do not see they can have any impact on the Board’s assessment of the risk of harm from Parvez and Rafaqat.  There is no basis for the court to interfere with the Board’s assessment of the Applicant’s evidence or its finding that the risk of harm could be avoided due to the availability of state protection and viability of internal relocation.  As such, we are of the view that the Judge’s failure to consider the Applicant’s letter dated 24 March 2025 and the documents attached thereto does not affect the Judge’s reasoning for refusing to grant leave to apply for judicial review. 

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

[1] See §2 of the Board’s Decision.

[2] See §7 of the Director’s Decision.

[3] See §§18 and 21(k) of the Board’s Decision.

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

[5] 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.

[6] 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.

[7] 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.