Javed Zubair v. Torture Claims Appeal Board
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CACV 538/2026, [2026] HKCA 1269 On Appeal From [2026] HKCFI 2673 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO 538 OF 2026 (ON APPEAL FROM HCAL NO 1025 OF 2021) ________________________ BETWEEN
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________________ J U D G M E N T ________________ Hon Chow JA (giving the Judgment of the Court): 1.This is the Applicant’s appeal against the order of Deputy High Court Judge Michael Wong (“the Judge”) dated 13 May 2026 (“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 16 June 2021 (“the Board’s Decision”), whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 7 December 2018. 2.The Applicant alleges that, if refouled to Pakistan, he will be harmed or killed by people from the Pakistan Muslim League (Narwaz) (“PML(N)”) because he supports another political party, the Pakistan Tehreek-e-Insaf, and he has been targeted by the PML(N) after the murder of his friend (Mubashir) by the PML(N)[1]. The Applicant’s background, the basis of his claim, the findings of the Board and its reasons for dismissing the Applicant’s appeal against the Director’s decision have been set out in detail in the Board’s Decision, and summarised by the Judge in his decision (see §§1, 2, 5 and 6 of the CALL-1 Form). We do not propose to repeat them here. 3.The Judge’s reasons for dismissing the Applicant’s leave application are set out at §§12-22 of the CALL-1 Form. In gist, the Judge found that the Applicant had not advanced any or and valid grounds for his intended judicial review of the Board’s Decision. The Judge also found no error of law, procedural unfairness, irrationality or Wednesbury unreasonableness in the Board’s Decision. THIS APPEAL 4.In his Notice of Appeal filed on 26 May 2026, the Applicant raises the following grounds of appeal:
5.In his written submissions lodged on 18 June 2026, the Applicant alleges that his case was not determined fairly, and complains about the lack of legal and language assistance. He also alleges that the Board’s Decision was unreasonable or irrational in the public law sense, and was a result of procedural errors or unfairness, and the authorities acted in a discriminatory manner towards non-refoulement claimants. 6.The Applicant did not appear at the hearing of the appeal. DISCUSSION 7.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’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)). 8.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. 9.The matters raised in the Applicant’s Notice of Appeal and written submissions are new points which were not raised in his leave application below. There is no good reason to permit him to raise these new points for the first time in the Court of Appeal. In any event, they are all general assertions without particulars, and do not give rise to any valid ground of appeal against the Judge’s decision. 10.There are two particular points raised by the Applicant that we shall deal with briefly. 11.First, the Applicant’s complaint that the Judge failed to properly examine the Board’s Decision or provide detailed reasons in dismissing his leave application is plainly unjustified. Despite his failure to provide any intended grounds of review in the proceedings below, the Judge carefully examined the Board’s Decision with anxious scrutiny, and was satisfied that there was no valid ground to judicially review the Board’s Decision. We are satisfied that the Judge’s determination of the Applicant’s leave application was fair, and the Judge gave sufficient reasons for dismissing the application. 12.Second, as for the Applicant’s complaint about the lack of legal and language assistance, it is well-established that a non-refoulement claimant is not entitled to free legal representation or language assistance at all stages of the assessment of his non-refoulement claim, or the determination of his application for judicial review. The Applicant was assisted by the Duty Lawyer Scheme in relation to the assessment of his non-refoulement claim by the Director, and plainly had legal and language assistance at that stage. He was assisted by an Urdu interpreter at the hearing before the Board[2]. The Form 86 and the Applicant’s supporting affirmation filed in the court below, as well as his Notice of Appeal and written submissions filed with this Court, are all written in English. This indicates that the Applicant is either conversant with English, or has access to language assistance as needed. The Applicant has failed to show that he was inhibited from advancing any particular point or ground before the Board or the Judge by reason of the lack of legal or language assistance. This complaint has no merit at all. 13.The Applicant has failed to raise any viable ground of appeal against the Order. 14.The Applicant’s appeal has no merit, and is dismissed.
The Applicant was not represented and did not appear |
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