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

CACV 78/2025, [2025] HKCA 810

On Appeal From [2025] HKCFI 335

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 78 OF 2025

(ON APPEAL FROM HCAL NO 2093 OF 2024)

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J U D G M E N T

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Hon G Lam JA (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 11 February 2025[1] refusing to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”) dated 3 October 2024.  In that decision, the Board upheld the decision of the Director of Immigration (“Director”) dated 5 July 2024 rejecting the applicant’s non-refoulement claim.

Background

2.The applicant is a national of India born in 1996.  He claimed to have last entered Hong Kong illegally on 31 March 2024 and was arrested by the police on the same day.  He lodged a claim for non-refoulement protection by way of written signification dated 13 May 2024 and his non-refoulement claim form dated 11 June 2024 was received by the Immigration Department on 12 June 2024.  The applicant’s claim was made on the basis that if he returned to India, his brother would harm or kill him due to a monetary dispute while he was working for his brother’s business.  The factual background of the applicant’s claim was set out at [44] of the Board’s decision.

3.By notice of decision dated 5 July 2024, the Director assessed the applicant’s claim in relation to all applicable risks and determined it against him.  Those grounds are BOR 3 risk,[2] persecution risk,[3] torture risk[4] and BOR 2 risk.[5]

4.The applicant appealed to the Board against the Director’s decision.  An oral hearing was held on 25 September 2024, during which the applicant gave evidence and answered questions from the Board.  The Board found the applicant’s behaviour to be detrimental to his credibility, because he failed to promptly take advantage of all the opportunities he had to claim non-refoulement protection in either Dhaka or Guangzhou before arriving in Hong Kong.  Notwithstanding this, in favour of the applicant’s credibility, the Board accepted the basic facts raised by the applicant, including that there was a monetary dispute between his brother and himself and that the applicant was assaulted to a minor extent and verbally threatened from time to time.  However, the Board did not accept that the applicant’s brother would harm or kill the applicant if he returned to India as he had ample opportunities before but had not done so, that the influence of the applicant’s brother extended beyond their home area, or that the applicant could not seek assistance from higher organizations in the event that the local police did not help him.

5.The Board found there was in fact no real risk of harm if the applicant returned to India, because it was a private monetary dispute without involvement of the state, the risk of harm was localized, the risk of harm did not reach the required level of severity, reasonable state protection would be available to the applicant, and internal relocation to New Delhi or Pune would be viable options for the applicant.

6.In conclusion, the Board held that there was no real risk of harm for the applicant in the event of refoulement to India.  By its written decision dated 3 October 2024, the Board dismissed the applicant’s appeal in respect of all the applicable grounds and confirmed the Director’s decision.

The Judge’s decision in the court below

7.On 11 November 2024, the applicant filed a Form 86 to seek leave from the Court of First Instance to apply for judicial review of the Board’s decision.  He did not specify any ground for judicial review in the Form 86.  In the accompanying affirmation, he stated that the Director reached the wrong decision as there was no proper inquiry and no understanding of the applicant’s situation.

8.The Judge considered the application on the basis of the documents alone as the applicant did not appear at the hearing fixed on 30 December 2024.  On 11 February 2025, the Judge issued his decision, refusing to grant leave to apply for judicial review.  The reasons were set out in [17] to [22] of the Judgment as follows:

“ 17. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

18. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

19. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

‘ 13. (1) … …Assessment of evidence and COI materials and 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.’

20. The Board, for the reasons given above, found that the applicant’s claimed risks were unfounded. The reason under paragraph 16 is not valid to challenge the Board’s Decision because the Board was entitled to rely upon the COI to make its assessment of the relevant risks.

21. There is no reason that the Court should interfere with the Board’s finding of the facts.

22. The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.”

Appeal to this Court

9.On 18 February 2025, the applicant filed his Notice of Appeal against the Judge’s decision.  His stated grounds of appeal were, essentially, that he would face hardship if refouled, that the Board relied on sources of news that were not officially recognized and not credible, and that the Board relied on outdated cases. 

10.The applicant has lodged written submissions in which he recites general legal principles in relation to the standard of fairness, the Board’s re-hearing of an applicant’s claim, and procedural unfairness.

11.At the hearing, the applicant had nothing further to add.

Discussion

12.In assessing the merits of the appeal, we shall 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.

13.In the present case, the Board found that there was no real risk of harm upon refoulement as alleged, because it was a private monetary dispute without involvement of the state, the risk of harm was localized, the risk of harm did not reach the required level of severity, reasonable state protection would be available, and internal relocation to New Delhi or Pune would be viable options for the applicant.  These are findings of fact open to the Board based on the evidence it received and for the reasons it gave. The applicant has failed to show any reasonably arguable public law error in relation to the Board’s decision.

14.Equally, the applicant has not been able to demonstrate any error in the decision of the Judge or advance any viable ground of appeal against the Judge’s decision.  We are not satisfied that there is any error in the Judge’s decision.

15.The applicant’s appeal is accordingly dismissed.

The Applicant appeared in person