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

CACV 166/2026, [2026] HKCA 842

On Appeal From [2026] HKCFI 977

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 166 OF 2026

(ON APPEAL FROM HCAL 1364 OF 2025)

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J U D G M E N T

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Hon Lisa Wong J (giving the Judgment of the Court):

Introduction

1.This is an appeal against the decision of Deputy High Court Judge K.W. Lung (“Judge”) on 13 February 2026 refusing to grant the applicant, a national of Pakistan, leave to apply for judicial review (“Judge’s Decision”). The intended judicial review sought to quash the decision of the Torture Claims Appeal Board / adjudicator of the Non-refoulement Claims Petition Office (“Board”) dated 30 May 2025 (“Board’s Decision”), which upheld the decision of the Director of Immigration (“Director”) dated 5 March 2024 rejecting the applicant’s non-refoulement claim.

2.The applicant’s claim was made on the basis of a fear that if he should return to Pakistan, he would be harmed or killed by 6 robbers because the applicant had identified them to the police. Details of the applicant’s background, the circumstances giving rise to his said alleged fear, the arguments advanced by him before the Board and the Board’s reasons for rejecting his appeal are all set out in the Board’s Decision[1]. For the grounds advanced by the applicant in support of his application for leave to apply for judicial review and the Judge’s reasons for refusal, see [11] – [17] of the Form CALL-1.  

Appeal to this Court

3.By the notice of appeal filed herein on 25 February 2026, the applicant appealed against the Judge’s Decision, essentially on the grounds (1) that the Director and the Board had not investigated his case properly and (2) that his case had not been determined fairly.

4.As the applicant did not lodge any written submissions, the scheduled hearing of his appeal was vacated pursuant to the directions of the Court. We shall determine the appeal on the basis of the available documents and materials.

Legal principles

5.First, the primary decision-makers in a non-refoulement claim are the Director and the Board. They alone assess the evidence and find relevant facts. An application for leave for judicial review does not provide a further avenue of appeal. The court will not re-assess the non-refoulement claim. It will intervene by way of judicial review only for errors of law, procedural unfairness or irrationality.

6.Second, an appeal against a refusal of leave to apply for judicial review is not the occasion for the Court of Appeal to examine the decision of the Board afresh as if the appeal were a fresh application for leave for judicial review. This court is concerned with the decision of the judge at first instance, which it will consider in light of the grounds of appeal raised by the applicant. The Court of Appeal shall interfere only if the judge had erred in law, failed to take into account a relevant matter or was otherwise plainly wrong. If no such error is shown, the appeal should be dismissed.

7.In support, 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].

Discussion

8.In the present case, the Board found no real risk of harm to the applicant upon refoulement because (1) even giving the applicant the benefit of the doubt in all his claims, the applicant was not a person of any ongoing adverse interest to the six robbers or the police and (2) the risk of harm, if any, did not attain a minimum level of severity. These findings of fact were open to the Board on the evidence it received and for the reasons it gave. In light of these findings, it was not necessary for the Board to consider the viability of internal relocation options to the applicant. The applicant has failed to show any or any reasonably arguable public law error in the Board’s Decision.

9.Equally, the applicant has not demonstrated any error in the Judge’s Decision. We are not satisfied that there is any error in the Judge’s Decision.

10.The applicant’s appeal is accordingly dismissed.

The applicant, unrepresented, acting in person