Makhloufi Ali v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

CACV 619/2025, [2026] HKCA 359

On Appeal From [2025] HKCFI 3074

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 619 OF 2025

(ON APPEAL FROM HCAL NO 805 OF 2020)

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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 (Non-refoulement Claims) Val Chow (“Judge”) on 1 August 2025 dismissing the applicant’s application for leave to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”) dated 27 March 2020.  In that decision, the Board upheld the decision of the Director of Immigration (“Director”) dated 23 August 2018 rejecting the applicant’s non-refoulement claim.

Background

2.The applicant is a national of Algeria born in 1975 and his claim was made on the basis that if he returned to Algeria, the family of his girlfriend would harm or kill him due to her family’s opposition to their romantic relationship.  Details of the applicant’s background, the basis of his claim and arguments advanced before the Board as well as the Board’s reasons for rejecting his appeal are all set out in the Board’s decision: see [4] of the Form CALL-1.  The Judge has set out the grounds advanced by the applicant in support of the application and his reasons for refusal of the application: see [5] – [11] of the Form CALL-1.

Appeal to this Court

3.On 18 August 2025, the applicant filed his Notice of Appeal against the Judge’s decision.  His stated grounds of appeal were, essentially, that the main focus of his case should be the discrimination and racism against Berbers (an ethnic minority of which he belongs to) and the secondary focus would be the relationship with his female partner.

4.The applicant has given consent in writing for this appeal to be disposed of on paper without an oral hearing, and we shall accordingly determine the appeal on the basis of the available documents and materials.

Discussion

5.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.

6.In the present case, the Board found that there was no real risk of harm upon refoulement as alleged, because it found that the applicant had fabricated his claim to the extent that his girlfriend did not exist in light of the various inconsistencies and unsatisfactory evidence, and that the low level of discrimination by reason of his ethnicity would not reach the requisite minimum level of severity of harm.   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.

7.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.  Although the applicant claims that the main issue of his case should be the discrimination and his girlfriend’s family was a secondary issue, we are satisfied that the Board had, in fact, assessed the issue of discrimination raised by the applicant already.  We are not satisfied that there is any error in the Judge’s decision.

8.The applicant’s appeal is accordingly dismissed.

The Applicant, unrepresented, acting in person