Nesar Mohammad v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

CACV 405/2025, [2026] HKCA 352

On appeal from [2025] HKCFI 2365

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 405 OF 2025

(ON APPEAL FROM HCAL NO 454 OF 2020)

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BETWEEN

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REASONS FOR JUDGMENT

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The Court:

Introduction

1.This is the applicant’s appeal against the decision of Deputy High Court Judge Levy (“the Judge”) dated 9 June 2025,[1] refusing his application for leave to apply for judicial review against the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board”) dated 24 January 2020 (the “Board’s 2^nd Decision”) whereby the Board dismissed his appeal against the decision of the Director of Immigration (the “Director”) dated 24 March 2017 (the “Director’s 2^nd Decision”) and rejecting his non-refoulement protection claim regarding his right to life under Article 2 (“BOR 2 Risk”).

2.As noted by the Judge, the Director had rejected the applicant’s claim under BOR 3, torture risk and persecution risk in his decision dated 15 December 2014 (the “Director’s 1^st Decision”) and the applicant’s appeal against it was rejected by the Board’s decision dated 27 July 2015 (the “Board’s 1^st Decision”). These Decisions were not challenged before the Judge.

The applicant’s claim and the Judge’s decision

3.The applicant is a national of India. In his non-refoulement claim form filed with the Immigration Department dated 24 July 2014, he alleged that, if refouled, he would be harmed or killed by his former business partners who blamed him for the loss of goods in the course of trade. Details of the applicant’s claim and the Board’s reasons for rejecting the applicant’s appeals can be found in the Board’s 2^nd Decision, the hyperlink to which can be found in the Form CALL-1.

4.The applicant’s application for leave to apply for judicial review was refused by the Judge and details of the Judge’s reasons for refusing to grant leave can be found in the Form CALL-1.

The appeal

5.By a notice of appeal filed on 16 June 2025, the applicant sought to appeal the Judge’s decision to this court. For the grounds of appeal, the applicant stated that (sic) “the ground of this appeal are that the Applicant will face hardship if he is to return back to his home country and that the Torture Claims Appeal Board has significantly relied on the source of news which is not officially recognized, or it is simply hearsay. They have also relied on some cases which are outdated considering the dramatic changes. The lack of credible source of information has resulted in them making groundless speculations.”, but without providing further particulars or elaboration.

6.The applicant lodged his written submission which can be summarised as follows:

(1) the assessors’ view was that his claim was not established because his fear was too low but in fact the applicant’s life is still in danger;

(2) the Board and/or the Director failed to take into account relevant considerations or took into account irrelevant considerations;

(3) the Board did not follow a high standard of fairness, did not inquire about his fear. The country of origin information clearly showed that no protection to the applicant would be provided. The Judge was improper to confirm the Board’s Decision;

(4) the applicant does not agree that he will be safe even if he relocates to the other parts of his country;

(5) the decision maker did not observe the applicant’s fear well;

(6) the applicant’s claim is not a private matter;

(7) the Judge applied incorrect test and relied on credibility findings;

(8) the Board acted outside the scope of the Immigration Ordinance/USM by misinterpreting statutory thresholds or applying an incorrect legal test; and

(9) the applicant also made further challenges such as, errors of law, breach of natural justice/procedural unfairness, irrationality/Wednesbury unreasonableness, error in fact-finding, failure to consider material evidence, misapplication of burden and standard of proof, failure to consider country information or changed circumstances, proportionality/compatibility with constitutional rights but he did not pinpoint who committed these errors or provide any information or elaborations.

7.The applicant was absent at the hearing on 10 February 2026. We dismissed his appeal with reasons to be handed down. Here is our reasons for the judgment.

Our views

8.The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524, at [14]. In particular, 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 of Appeal’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst, at [14(6)]).

9.It is incumbent on the applicant to point out the Judge's errors with sufficient particulars and specifics. We are of the view that the matters set out in the notice of appeal or his written submissions failed to identify any error on the part of the Judge. They do not constitute any viable grounds of appeal and lack substance. We see no basis to interfere with the Judge’s decision.

10.For the above reasons, the applicant’s appeal is devoid of merits. Accordingly, we dismiss the appeal.

The applicant, unrepresented, did not appear