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

CACV 381/2026, [2026] HKCA 1138

On Appeal From [2026] HKCFI 1650

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 381 OF 2026

(ON APPEAL FROM HCAL NO. 1770 OF 2021)

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J U D G M E N T

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Hon Eugene Fung J (giving the Judgment of the Court):

Introduction

1.This is the applicant’s appeal against the decision of Deputy High Court Judge Levy (“the Judge”) given on 27 March 2026[1] refusing his application for leave to apply for judicial review against the decision dated 8 December 2021 of the Torture Claims Appeal Board (“the Board”).  The Board had dismissed his appeal against the decision dated 9 June 2021 of the Director of Immigration (“the Director”) which in turn had rejected the applicant’s non-refoulement claim having regard to the torture risk,[2] BOR 3 risk,[3] persecution risk[4] and BOR 2 risk[5] grounds.

Background

2.The applicant is a national of Pakistan born in 1993.  He last arrived in Hong Kong illegally on 4 March 2020.  On 31 August 2020, he surrendered to the Immigration Department and lodged his non‑refoulement claim shortly after.  The basis of his claim was that if he were to return to Pakistan, he would be harmed or killed by Javaid Iqbal, a candidate of the Pakistan Tehreek-e-Insaf Party (PTI) as the applicant refused to help him secure votes when he was running for the position of Union Council General Councillor in an election, and instead supported a candidate of the rival party Pakistan Muslim League (Nawaz).  He claimed that Javaid Iqbal had eventually won the election and his men had tried to kill him.  Details of the applicant’s background, the basis of his claim and the Board’s reason for rejecting his appeal have been set out in the Board’s decision.[6]  We will not repeat them.

3.By a Form 86 filed on 31 December 2021, the applicant applied for leave to judicially review the Board’s decision.  He did not identify any specific ground of judicial review in his Form 86 or supporting affirmation.  At the oral hearing on 12 March 2026, when asked to clarify his grounds, the applicant asked the court to review his case as he would be harmed if refouled.  The Judge refused his application on grounds that the intended challenge was not reasonably arguable and had no realistic prospects of success.  Details of the reasons are set out in [5] to [9] of the Form CALL-1 dated 27 March 2026. 

Appeal to this Court

4.On 10 April 2026, the applicant filed his Notice of Appeal against the Judge’s decision, where he simply stated that he was not satisfied with the Judge’s order.  No specific error of law, procedural unfairness or irrationality was identified in either the Board’s decision or the Judge’s decision. 

5.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 therefore determine the appeal on the basis of the available documents and materials.

Discussion

6.In assessing the merits of the appeal, we have regard to the legal principles which this Court has adopted in dealing with appeals in non-refoulement cases: 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].  In particular, the role of the court in a judicial review is not to provide a further avenue of appeal.  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.  In the determination of an appeal against the refusal of leave by the Court of First Instance, the Court of Appeal will 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.  It is not the role of this Court to examine the decision of the Board afresh as if the appeal were a fresh application for judicial review.

7.Further, it is well-established that assessments of evidence, country of origin information (COI), risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director as they are primary decision makers.  The court, in its supervisory role, will not intervene by way of judicial review unless there are errors of law, procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022.

8.In the present case, the Board, after an oral hearing and extensive analysis of the COI, rejected the applicant’s claim as entirely lacking in credibility.  The Board found, contrary to the applicant’s evidence, that the local government elections in Punjab were held in 2015, not July 2018, and no such election for the Union Council took place in 2018.  There was no evidence of a candidate by the name of Javaid Iqbal running for the election seat.  The applicant’s claims of threats were found to be fabricated given his evasive and shifty testimony.  The Board assessed that state protection was reasonably available, and internal relocation to Karachi was a reasonable and practical option.  The Board thus concluded that the applicant had failed to satisfy the requisite threshold entitling him to protection under any of the applicable grounds.

9.These are findings of fact open to the Board having conducted a thorough and detailed assessment of the applicant’s claim.  More importantly, there was a fundamental lack of evidence to support the applicant’s core allegations.  Having regard to the multiple inconsistencies in his evidence and the relevant country information which shed light on the plausibility of his claim, the Board was entitled to come to the conclusion that the alleged claims of threats were largely fabricated.  The applicant failed to demonstrate any errors of law, procedural irregularity or irrationality in the Board’s decision.

10.In this appeal, the applicant merely stated that he was dissatisfied with the Judge’s conclusion, without pointing to any specific legal error, procedural defect or irrational finding in the Judge’s reasoning.  We are satisfied that the Judge had given proper and adequate reasons for her holding that the intended judicial review had no prospect of success.  There is no proper basis for us to disturb the Judge’s decision.  

11.Accordingly, we dismiss the appeal.

The Applicant acted in person.

[1]    [2026] HKCFI 1650

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

[3]    This refers to 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 and its 1967 Protocol.

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