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

Case No.HCAL 2387/2020[2026] HKCFI 5434
Court
Court of First Instance
Date07 Oct 2026
JudgeDeputy High Court Judge Levy
Case Document
100%

HCAL 2387/2020

[2026] HKCFI 5434

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2387 of 2020

BETWEEN

  KP Applicant
  and  
  Torture Claims Appeal Board / Respondent
  Non-Refoulement Claims Petition Office
  and  
  Director of Immigration Interested Party

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

    consideration of the documents only;            or
   consideration of the documents and oral submissions by counsel for the Applicant in
open court;

Order by Deputy High Court Judge Levy:

1.  Leave is granted to the applicant to issue a judicial review application against the Board’s Decision.

2.  The applicant shall within 14 days file and issue an originating summons, which copy together with all the relevant documents shall be served on the Board as respondent and the Director as an interested party.

3.  Costs be in the cause of the proceedings, and the applicant’s own costs be taxed in accordance with the Legal Aid Regulations.

Observations for the Applicant:

A.  Introduction

1.By a “Notice of application to apply for leave to judicial review” in the prescribed Form 86 filed on 7 December 2020, the applicant applied for leave to apply for judicial review (“Leave Application”). The intended judicial review was against the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) dated 17 September 2020 (“Board’s Decision”) dismissing the applicant's appeal against a decision of the Director of Immigration (“Director”) dated 28 December 2018 (“Director’s Decision”) rejecting the applicant's non-refoulement claim on all applicable grounds[1].

2.The applicant was granted legal aid and assigned counsel, Ms Samantha Lau. On 3 August 2026, the court granted leave to the applicant to amend his Form 86. On 4 August 2026, the applicant filed his amended Form 86 (“Amended Form 86”). Before the hearing, the applicant lodged hearing bundles (“HB”) together with the written submissions (“Skeleton”) and a list of authorities prepared by Ms Lau.

3.At the hearing, the court also granted an anonymity order. In the circumstances, the Board’s Decision at the following hyperlink will be accordingly redacted to give effect to the anonymity order.

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL002387_2020_files/the_Board's_Decision.pdf

4.The applicant was a national of State K. The applicant operated a trading business, and opened a bank account for the business in BTA Bank. MA, the chairman of BTA Bank at that time was also a politician (an opposition leader and political activist) and a government minister. MA later fled State K under allegations of fraud. A former manager of BTA Bank passed some sensitive documents (“Documents”) to the applicant that could have implicated the President of State K (“Former President”). After having viewed the Documents, the applicant believed that MA was innocent and started disseminating information related to the Documents to some of his friends without giving thought as to the possible consequences of his action.

5.In around February 2013, the applicant was verbally warned by men believed to be State K’s Secret Service (“SS”). The applicant destroyed all the Documents which he had kept at home.

6.In around May/June 2013, the applicant was kidnapped by people believed to be from SS, who assaulted him until he lost consciousness. The applicant fled to a neighboring state for 10 days with the help of his good friend AP who arranged a Chinese visa for him to enable him to enter China through State K, and he stayed in China for about 1 year. He was removed from China after having overstayed his visa. The applicant came to Hong Kong in December 2014, and made several side trips afterwards. On 16 March 2015, the applicant returned to Hong Kong and departed on 21 March 2015. He returned again on 7 April 2015. After having made a side trip to China, he returned to Hong Kong and departed on 25 May 2015. After this, he returned to State K, AP arranged a new passport for the applicant for a Chinese visa. Upon being denied entry to China, the applicant came to Hong Kong in June 2015. The applicant has overstayed in Hong Kong since 4 July 2015.

7.In 2017, whilst in Hong Kong, the applicant learned that AP was found dead in a water reservoir. The applicant believed that the government of State K was responsible for AP’s death because of his assistance rendered to the applicant. The applicant was arrested for overstaying in March 2018. On 21 March 2018, the applicant raised the non‑refoulement claim.

8.In 2017 whilst in Hong Kong, the applicant joined a social media group on the Telegram (“Telegram Group”) to organize rallies and protests and discuss matters regarding the government of State K. The applicant quit after the Telegram Group was declared an extremist group.

9.The basis of the applicant’s claim was that, if refouled to State K, he would be harmed or killed by the SS because of his distribution of the Documents and that he had joined the Telegram Group whilst in Hong Kong. The Board’s reasoning and findings were set out in detail in the Board’s Decision as redacted and it is not necessary for me to repeat them. Unless otherwise specified, I shall adopt the Board’s abbreviations and descriptions stated in the Board’s Decision.

B.  Applicant’s grounds of review

10.In the Amended Form 86, the applicant advanced the following grounds in support of the Leave Application. Broadly, the applicant avers that the Board had erred in:

(1)  Ground 1: Failing to obtain and consider relevant medical evidence concerning the Applicant’s cognitive impairment, which rendered the proceedings before the Board procedurally unfair;

(2)  Ground 2: The credibility assessment;

(3)  Ground 3: Rejecting the applicant’s claim on the basis of adverse credibility findings;

(4)  Ground 4: The assessment of the BOR 3 risk on ground of the applicant’s ill health.

C.  Proper approach in leave application

11.It is trite that a leave application operates as a ‘filtering’ process. Hence, there is no requirement or expectation to give elaborate reasons for my decision.[2] It is therefore sufficient to state my observations in respect of each of the above grounds after considering the Board’s Decision and the applicant’s materials adduced.

D.  The applicant’s medical conditions

12.Before the various Board hearings that took place from June to September 2019, the applicant was diagnosed in July 2018 to have been suffering from hypertension, hyperlipidemia and mechanical knee pain[3] and had been admitted to Queen Elizabeth Hospital on 27 July 2018 for ischemic stroke. The screening interview before the Director had to be rescheduled[4]. After his discharge, he continued receiving follow-up medical treatments for his complaints of “multiple symptoms after stroke, including dizziness, urinary frequency, poor memory, leg pain, right side of face numbness”[5]. The applicant was “suspected [of] MCI [Mild Cognitive Impairment] with fair short-term memory and fair attention, underlying poor sleep” and scored 17 out of 30 in a Montreal Cognitive Assessment (“MoCA”), which was expressly marked as “Below Cut-off”[6]. The applicant believed he had a high risk of a repeated stroke[7].

E.  Ground 1: The Board failed to direct a medical examination under s.37ZC of the Immigration Ordinance[8]

13.The evidence of the applicant’s medical conditions as outlined in the preceding paragraphs was placed before the Board during the various hearings, and the Board was aware of them[9]. The Board was also mindful of its power under s.37ZC to order a medical examination to be conducted by a medical practitioner. The applicant informed the Board that he would cooperate to attend a psychiatric examination. The Board however decided not to direct the applicant to under a psychiatric examination as it took the view that such test would not reveal anything other than impaired memory which the applicant had already been diagnosed with: Board Decision [14] and [16].

14.The applicant avers that the Board’s decision in not calling for further medical evidence was procedurally unfair for 4 reasons. First, in declining to have the applicant medically examined, the Board would have no access to the applicant’s medical condition that could materially affect the Board’s assessment of the credibility and reliability of the applicant’s evidence. Second, in the absence of the further medical evidence, the Board’s conclusion that the applicant’s alleged “inconsistencies and inherent implausibilities (sic)” did not relate directly with his memory impairment has no basis. Third, in relying on the applicant’s own stated willingness to undergo medical examination as a factor in declining to call for such an examination, the Board failed its duty of joint endeavour[10]. Fourth, the Board’s stated view that a psychiatric examination would not be helpful for the purpose of assessing the applicant’s “fitness to participate in a hearing” was misplaced. The Board should have directed its attention in ascertaining how the applicant’s memory impairment might have affected the applicant’s ability to give oral evidence. It was averred that the Board failed its duty of “joint endeavour” obliging the Board to proactively probe into the applicant’s medical conditions and obtain evidence on how those conditions might have affected his ability to participate meaningfully in the hearings before the Board. Had a proper medical report been directed by the Board, the Board might have reached an entirely different conclusion as to the credibility of the applicant’s claim.

E.1  Discussion

15.In the present case, the genesis for the Board’s consideration of its power under s.37ZC to direct the Director to obtain a psychiatric examination was because of the Board’s knowledge of the applicant’s diagnosed MCI and memory impairment. Under such circumstances, the Board should have been guided by Section C of the UNHCR Handbook[11]dealing with “Cases Giving Rise To Special Problems In Establishing Facts”. Although Section C referred to “Mentally disturbed persons”, I believe that the guidelines (at [208]) should be equally applicable to a person having memory decline and cognitive impairment. A high standard of fairness obliges the Board to at least obtain a medical report to provide information on the applicant’s ability “to fulfill the requirements normally expected of an applicant in presenting his case”. The applicant with such a mental/cognitive condition should have been accorded a lighter burden of proof than a claimant without such a condition by obtaining information that the applicant himself could not provide: see Handbook at [210].

16.In [14] and [16] of the Board’s Decision, the Board’s decision to exercise its power under s.37ZC seems to have been largely based on 2 considerations. First, its concern with the applicant’s fitness to participate in a hearing; and secondly, the applicant’s own confirmation “in clear terms in his own view” of his fitness to participate in a hearing.

17.In my view, the Board’s first consideration seems to have been irrational. As Ms Lau rightly pointed out, a reasonable Board was required to ascertain whether and to what extent the applicant’s diagnosed memory impairment would have affected the applicant’s evidence‑giving ability. As for the Board’s second consideration, it seems to also be flawed by having wrongly assumed that the applicant was in a position to judge his own ability, given his cognitive problem.

18.In my view, had the Board obtained further medical examination of the applicant, it would have likely provided very valuable and important information in the Board’s evaluation of the applicant’s credibility. A medical assessment that states that an applicant suffers from “cognitive difficulties…” “may provide an explanation for the inconsistencies in the [a]pplicant’s evidence”[12] .

19.By declining to call for medical examination of the applicant’s mental condition, the Board seems to have erred by not having had sufficient and valuable evidence to help it to conduct a proper credibility assessment, and further failed to carry out its duty of “joint endeavour”. Thus, it is reasonably arguable that the Board’s Decision is tainted.

F.  Ground 2: Flawed Credibility Assessment

20.At [61] of the Board’s Decision, the Board expressed that it was mindful of the applicant’s medical condition of impaired memory. However, it was satisfied that the applicant had a reasonable recall of past events. The Board had raised with the applicant a number of concerns relating to “inconsistencies and inherent implausibilities (sic.)” with his claims. The concerns include:

(i)  the applicant’s “vague” evidence about his business and his claim of having been the subject of the Investigations[13] ;

(ii)  the “inconsistent” evidence as to who was investigating him[14]; and the applicant’s explanation that the applicant ran a business of 20 to 50 employees on a large piece of land of his house[15] ;

(iii)  the “mishmash of dates” on the Business Documents and the applicant’s “inconsistent explanation” that caused the Board to doubt the credibility of the Business Documents[16];

(iv)  the claim that the Documents implicated the Former President and his family[17] and the applicant’s “vague responses… did not include any mention of there being any falsified contracts in the Documents”.

(v)  the circumstances of how the applicant was given possession of the Documents by Mr B, and that the applicant “again gave only vague responses as an attempted explanation”[18].

(vi)  the people to whom the applicant disseminated the Documents[19];

(vii)  the applicant’s relationship and dealings with MA[20], and that the Board found the applicant’s “explanations as to how he befriended and had dealings with MA were also vague and not persuasive; and

(viii)  the applicant’s ability to enter and depart State K a number of times with the assistance of AP[21].

21.At [75] of the Board’s Decision, the Board stated that “’[f]or reason of the above multiple inconsistences and impluasibilities (sic.) …”, the Board was not persuaded by the applicant’s explanations and refused to give the applicant the benefit of the doubt as it found the applicant was not a credible witness”. In its conclusion at [76], the Board concluded that the applicant had fabricated his claims after it rejected the applicant’s various aspects of the claim seriatim.

22.The applicant contended that the Board’s credibility assessment was flawed. Firstly, when assessing the applicant’s credibility, the Board was wrong in using its own assumptions and speculations[22] and without due consideration to the possibility of a regime which acts in way that defy local analysis or beyond belief[23]. This error, Ms Lau submitted, was evidenced in the Board’s finding that it was implausible that the applicant could have operated his business from home (see [20 (ii)] above), and travelled in and out of the country without having come to the attention of the SS (see [20 (viii) above]).

23.Secondly, it was the applicant’s contention that the Board in its findings at [70] to [71] and [73] of the Board’s Decision made the same mistake as the Adjudicator in JB (DR Congo) v Secretary of State for the Home Department[24] by relying on the vagueness of the applicant’s evidence without clearly identifying what level of detail was lacking.

24.Thirdly, Ms Lau submitted that the Board erred by rejecting the essential parts of the applicant’s case at [76] of the Board’s Decision without putting the applicant on notice, thus offending the rule of “Brown v Dunn” applied by the Court of Appeal in Re Masud MD[25], followed by this court in Amour Naila Seif v Torture Claims Appeal Board [26].

25.All in all, the applicant contended that the Board’s Decision was flawed in having failed to assess the applicant’s evidence in the round by the consideration of the relevant COI[27]. While the Board had wrongly used the inconsistencies on peripheral matters in the final assessment on credibility as decisive factors[28], it glaringly failed to take into account the material parts of the applicant’s claims concerning the applicant’s fear of harm stemming from the SS caused by the applicant’s past kidnap and assault; its involvement with the death of AP while the applicant was in Hong Kong before its outright rejection of the applicant’s claims at [76] of the Board’s Decision; and the misapprehension of the evidence in [70] of the Board’s Decision in stating, contrary to the applicant’s evidence given at the hearing[29], that the applicant’s responses did not include any mention of falsified contracts.

F.1  Discussion

26.Ms Lau’s submissions have force. Despite an express self-reminder of the applicant’s “impaired memory and other medical conditions” (Board’s Decision at [75]) the Board, when assessing the applicant’s credibility, did not seem to have properly considered the likely impact of the applicant’s impaired memory on the inconsistencies of the applicant’s evidence. In the Board’s Decision, it does not appear that the Board had made any attempt to assess the applicant’s evidence against the applicant’s impaired memory. Instead, the Board applied its own subjective view (as in relation to how the applicant operated its business), and that the applicant was not a decision-maker worth his salt. It is trite that drawing an inference adverse against the applicant by using common sense or assumptions is not permitted. In Ramos Melvin Atienza v Torture Claims Appeal Board [30] , the court cited the UK Court of Appeal in Y v Secretary of State for the Home Department [2006] EWCA Civ 1223 stating at [25] that:

“There seems to me to be very little dispute between the parties in the legal principles applicable to the approach which an adjudicator, now known as an immigration judge, should adopt towards issue of credibility. The fundamental one is that he should be cautious before finding an account to be inherently incredible, because there is a considerable risk that he will be over influenced by his own views on what is or is not plausible, and those views will have inevitably been influenced by his own background in this country and by the customs and ways of our society. …The dangers were well described in an article by Sir Thomas Bingham, as he then was, in 1985 in a passage by IAT in Kasolo v SSHD13190, the passage being taken from an article in Current Legal Problems, Sir Thomas Bingham said this:

‘… No judge worth his salt could possibly assume that men of different nationalities, educations, trades, experience, creeds and temperaments would act as he might think he would have done or even – which may be quite different – in accordance with his concept of what a reasonable man would have done.’’. (Emphasis added by the court)

27.One fundamental error the Board appeared to have made was its misapprehension of the applicant’s evidence regarding the falsified contracts (see F/N. 29). The Board’s misapprehension led to its rejection of the applicant’s evidence regarding the sensitive nature of the Documents (see [70] of the Board’s Decision). Given the fact that the applicant’s past ill-treatment essentially originated from the Documents, I therefore believe that the Board’s credibility assessment is arguably irrational and unfair.

G.  Ground 3: Error of Law – Rejection of Claim on the Basis of Adverse Credibility Findings Alone

28.In this ground, it is Ms Lau’s submission that even if the Board had rejected the applicant’s evidence and found that it was not credible  in [75] and [76] of the Board’s Decision (see [21] above), it “does not necessarily lead to the rejection of the claim, and that the claim must still be assessed on the basis of the evidence that was found to be true, including documentation relevant to the applicant’s situation and evidence regarding persons who are similarly situated” : see Ramos Melvin Atienza (ibid) at [21]. Ms Lau therefore suggested that the Board should have considered the accepted evidence and assessed such evidence against other evidence in the round[31].

29.Ms Lau submitted that the Board erred in having failed to take into account the applicant’ evidence when the Board had found it to have been consistent with the COI (see Board’s Decision at [59] and [60]). It was submitted that the Board ought to have proceeded to evaluate the risks (if any) faced by the applicant given the political landscape[32] in State K. The Board had erred in having failed to assess the applicant’s risk profile based on the evidence it accepted.

G.1  Discussion

30.Contrary to Ms Lau’s contentions, the Board had in fact considered the relevant COI. In [59] of the Board’s Decision, the Board discussed with the applicant the relevant COI, and the applicant expressed his belief that there would be no change to the risk of harm he faced despite the election of a new president, President T. This was because   President T is the ‘puppet’ of the Former President. The Board accepted the applicant’s said view that the Former President was still “effectively in control of” the country. The Board next at [60] of the Board’s Decision also accepted the applicant’s claims that MA was a former minister and the president of the BTA Bank, and who was accused of illegal transfer of large sums of money overseas.

31.The part of the evidence the Board’s accepted in [59] and [60] of the Board’s Decision is, in my view, important. This unchallenged aspect of the evidence regarding MA and the BTA Bank, and his later problem leading to his fleeing State K essentially is substantially the crux of the applicant’s claim (see [22 d-g] of the Board’s Decision). The Board’s finding of consistency of evidence in regarding the Telegram Group and the voting irregularities of the presidential election can similarly corroborate with the applicant’s claims about the applicant’s belief as to the role of the Former President and the applicant’s later involvement with the Telegram Group and his fear of arrest by the government officials (see [22 I; ee-gg] of the Board’s Decision). Against this unchallenged evidence, a high standard of fairness would have obliged the Board in the present case to evaluate the applicant’s fear of harm despite the adverse credibility findings it made in [75] and [76] of the Board’s decision. As the Federal Court in Montreal, Quebac observed in Odetoyinbo v the Minster of Citizenship and Immigration [33] (at [6]) regarding the mistake the “Refugee Protection Division of the Immigration and Refugee Board” of Canada made, the Board in the present case was also totally silent in its reasons on these key aspects of the applicant’s claim, and has not shown to have considered the effect of such evidence that could amount to vital corroboration of the applicant’s claim.

32.In the circumstances, the Board’s failure to properly evaluate the applicant’s risk of harm against the accepted evidence has arguably failed to meet the requirement of the high standards of fairness, and the Board’s Decision is therefore arguably unreasonable and irrational, and procedurally unfair.

H.  Ground 4: Erroneous Assessment of Non-Refoulement Based on BOR3 / Medical Ground

33.This ground is only concerned with the BOR 3 risk. Following on from the Board’s rejection of the applicant’s credibility, the Board went on to find that the applicant did not show any proscribed risk under each of the four grounds of risk, including BOR 3.

34.Ms Lau submitted that the Board was erroneous in assessing BOR 3 in relation to the applicant’s ill health by having failed to consider the relevant questions required in the case of Paposhvili v Belgium[34] decided by the Grand Chamber of the European Court of Human Rights (“ECtHR”) in Strasbourg. The general considerations on the criteria for dealing with a “seriously ill” applicant in relation to Art.3 of the European Convention of Human Rights (“ECHR”) laid down in the Paposhvili judgment was later applied by the ECtHR in the case of Savran v Denmark[35]. The Hong Kong courts have also adopted and applied the same criteria in Mamunur Rashid v Torture Claims Appeal Board [36] and Khybar v Director of Immigration [37] when assessing BOR 3 risk in relation to applicants respectively having suffered from HIV/AIDS and Behcet’s disease. Ms Lau contended that the Board’s description in [53] of the Board Decision that the “source of harm” to the applicant was “his medical conditions” when finding that such conditions did not amount to risk of harm was clearly wrong as it failed to grasp the nexus between the applicant’s medical conditions and his entitlement to protection under BOR 3.

H.1  Discussion

35.As explained in F/N 1 in the above, BOR 3 risk refers to “the risk of torture or cruel, inhuman or degrading treatment or punishment under Art 3 of HKBOR”. The prohibition against refoulement under the statutory provisions of BOR 3 is modeled upon Art 7 of the International Convention on Civil and Political Rights (“ICCPR”) with identical provisions[38]. The first part of the provisions (“No one shall be subjected to torture or cruel, inhuman or degrading treatment or punishment”) provided in both Art 3 of the HKBOR and Art 7 of the ICCPR are identical to the provisions of Art 3 of the ECHR. The Paposhvili judgment and the later Savran case were concerned with the discussion of Art 3 of the ECHR. Hence, the discussion in these judgements is instructive for the consideration of the BOR 3 risk in the present case.

36.In Section D above, it has already been stated that the Board was cognizant of the applicant’s various medical issues- both mental and physical. Before concluding that the applicant would not face any BOR 3 risk of harm, the Board at [53] of the Board’s Decision had indeed considered the relevant risk and the Paposhvili judgment:

“[53] I consider though that any harm to the Appellant arising from his serious medical conditions would not amount to Proscribed Harm under any Applicable Ground. The source of harm to him is his medical conditions. Any harm the Appellant will suffer due to his medical conditions is not for any Convention reason. The evidence before me does not suggest the Appellant will be denied medical treatment in [State K] for any Convention reason. Nor does any harm to the Appellant from his medical conditions fall within the definition of torture in section 37U of the Ordinance. Even if the life expectancy of the Appellant may be reduced if he is refouled to [State K], that too is a consequence of his medical conditions. He will not be arbitrarily deprived of his life in the sense that his death would be illegal, unjust or disproportionate. Moreover, the medical evidence before me does not suggest the Appellant is facing imminent death due to his medical conditions or that he will be without any medical care in [State K]. His would not appear to be the type of very exceptional case recognised by the European Court of Human Rights in D[39]. Nor do the Appellant’s circumstances suggest that the Appellant would as recognised by the European Court of Human Rights in Paposhvili face a serious, rapid and irreversible decline in health due to an absence or lack of access to appropriate treatment (beyond general shortcomings in health care system of the Risk State), resulting in intense suffering or significant reduction in life expectancy such that Appellant’s removal to [State K] would amount a breach of BOR 3”.

37.The imminent death test in D the Board mentioned in [53] above was ruled in the Paposhvili judgment as not the only required criterion. As the Board had also rightly pointed out that the consideration might include “other very exceptional cases where the humanitarian consideration weighing against removal were equally compelling”: Paposhvili at [178]. According to the Paposhvili judgment, “other very exceptional cases,

“[183]… may raise an issue under Article 3 should be understood to refer to situations involving the removal of a seriously ill person in which substantial grounds have been shown for believing that he or she, although not at imminent risk of dying, would face a real risk, on account of the absence of appropriate treatment in the receiving country or the lack of access to such treatment, of being exposed to a serious, rapid and irreversible decline in his or her state of health resulting in intense suffering or to a significant reduction in life expectancy...”

38.Thus, applying the above ratio to the present case, the Board would be required to assess whether (i) the applicant was a  “seriously ill person” and (ii) substantial grounds had been shown for believing that he would face a real risk, on account of the absence of appropriate treatment in the receiving country or the lack of access to such treatment, of being exposed to a serious, rapid and irreversible decline in his health resulting in intense suffering or to a significant reduction in life expectancy.

39.As for the burden of proof, the Paposhvili judgment also provided instructive guidance: -

“[186] In the context of these procedures, it is for the applicants to adduce evidence capable of demonstrating that there are substantial grounds for believing that, if the measure complained of were to be implemented, they would be exposed to a real risk of being subjected to treatment contrary to Article 3… In this connection it should be observed that a certain degree of speculation is inherent in the preventive purpose of Article 3 and that it is not a matter of requiring the persons concerned to provide clear proof of their claim that they would be exposed to proscribed treatment …

[187] Where such evidence is adduced, it is for the authorities of the returning State, in the context of domestic procedures, to dispel any doubts raised by it … The risk alleged must be subjected to close scrutiny… in the course of which the authorities in the returning State must consider the foreseeable consequences of removal for the individual concerned in the receiving State, in the light of the general situation there and the individual’s personal circumstances…. The assessment of the risk as defined above (see paragraphs 183…) must therefore take into consideration general sources such as reports of the World Health Organisation or of reputable non-governmental organisations and the medical certificates concerning the person in question.”

40.Since there was some medical evidence before the Board suggesting that the applicant had a number of medical issues, according to the low standard of proof stated in [186] in Paposhvili, the applicant would have probably passed the threshold requirement of adducing evidence. It would therefore befall on the Board “to dispel any doubts” by considering the relevant COI. In this respect, I am in agreement with Ms Lau that the Board appeared to have failed to apply the rigorous scrutiny required by Paposhvili. Not only it had failed to consider any COI, it had erroneously reached the conclusion that “the evidence does not suggest the [applicant] will be denied medical treatment in [State K]” when the Board did not seem to have made any such inquiry at all.

41.For these reasons, I agree with Ms Lau that the Board’s assessment on BOR 3 risk is irrational, unreasonable and wrong.

Conclusion

42.In the premises, and for all the given reasons, I am of the view that the applicant’s Leave Application is reasonably arguable on those grounds stated above, thus meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung [40].

43.Accordingly, I grant leave to the applicant to apply for judicial review of the Board’s decision, and direct that he shall within 14 days file and issue an originating summons, which copy together with all the relevant documents shall be served on the Board as respondent and the Director as an interested party.

Order

44.Leave is granted to the applicant to issue a judicial review application against the Board’s Decision.

45.The applicant shall within 14 days file and issue an originating summons, which copy together with all the relevant documents shall be served on the Board as respondent and the Director as an interested party.

46.Costs be in the cause of the proceedings, and the applicant’s own costs be taxed in accordance with the Legal Aid Regulations.

Dated the 7th day of October 2026

  ( Alfred CHAN )
for Registrar, High Court

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence




Notes for the Applicant:

If leave has been granted, the Applicant or the Applicant’s solicitors must:

       
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);

b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and

c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
  Sent to the Applicant’s solicitors
on 7/10/2026

KP

Applicant’s solicitors ref. no: 8244-LAD/MT/LL, LA/MJR/17898/2025 (CAO40)
  Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 7/10/2026

Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 15197/19/1/70/KAZ1

Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 3195/18 (formerly RBCZ 10376/18)

Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)



Form CALL-1



[1]  The applicable grounds are risk of torture under Part VIIC of the Immigration Ordinance (“torture risk”) , BOR 2 risk (this refers to the risk of violation of the right to life under Art. 2 of s.8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”), BOR 3 risk (this refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Art 3 of HKBOR) and persecution risk (This refers to the risk of persecution with reference to the non-refoulement principle under Art. 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol) under the USM (This refers to the Hong Kong Government’s Unified Screening Mechanism (“USM”) implemented since 3 March 2014 to process claims for non-refoulement protection. For a detailed description of the USM, see the judgment of Zervos J in HKSAR v Vu Thang Duong & Anor [2015] 3 HKC 293.

[2]  Re Zunartyah [2018] HKCA 14 at §23.

[3]  HB298 - medical report dated 8 July 2018 from Ruttonjee & Tang Shiu Kin Hospital.

[4]  HB292-293.

[5]  HB306- medical report dated 9 October 2018 from Violet Peel General Out-Patient Clinic.

[6]  HB320-321 – medical report dated 22 January 2019 from Ruttonjee Hospital.

[7]  HB355- Transcript 26P.

[8]  Unless expressly stated, all references to the statutory provisions are provisions under the Immigration Ordinance.

[9]  Board Decision [13].

[10]  TK v Jenkins [2013] 1 HKC 526 at [24].

[11]  UNHCR’s Handbook on Procedures and Criteria for Determining Refugee Status (re-issued in February 2019).

[12]  Feleke v Canada (Citizenship and Immigration) 2007 FC 539 at [10] and [18].

[13]  Board Decision [66].

[14]  Board Decision [67].

[15]  Board Decision [68].

[16]  Board Decision [69].

[17]  Board Decision [70].

[18]  Board Decision [71].

[19]  Board Decision [72].

[20]  Board Decision [73].

[21]  Board Decision [74].

[22]  ST v Betty Kwan [2014] 4 HKLRD 277 at [43].

[23]  KM v Torture Claims Appeal Board [2020] 3 HKC 608 at [44].

[24]  [2003] UKIAT 12.

[25]  [2021] HKCA 1449.

[26]  [2026] 2 HKC 171.

[27]  Mohamed Anver Mohamed Riyas v Torture Claims Appeal Board [2019] HKCFI 26 at [23].

[28]  UNHCR: “Note on Burden and Standard of Proof in Refugee Claims “, published on 16 December 1998.

[29]  Transcript at HB 402U to 403FI-

Applicant: … “The transfers were made to one-day, fake companies and they were fake contracts. (HB403C)

Fake contracts, copies of fake contracts. (HB403F)

These documents implicated these one-day companies which were opened by people close to  the President” (HB403H-I) (Emphasis is added by the court).

[30]  [2025] 4 HKC 989.

[31]  “Assessing credibility and refugee status in asylum claims lodged before 28 June 2022” (Version 10.0) (published on 28 June 2022 for UK Home Office staff), at p.47.

[32]  According to the Country Reports on Human Rights Practices 2017 – K published by the United States Department of State, it was stated that President N received 97.5% of the vote, and there was no genuine political competition. There were arbitrary or unlawful killings, as well as selective restrictions on freedom of expression, press, assembly, religion and association: HB221.

[33]  2009 FC 501.

[34]  [GC], App No. 41738/10, 13 December 2016.

[35]  [GC], App No. 57467/15, 7 December 2021.

[36]  [2024] HKCFI 2568.

[37]  [2025] 1 HKC 920.

[38]  Both Art 3 of the HKBOR and Art 7 of the ICCPR provide that “No one shall be subjected to torture or cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation”.

[39]  D v United Kingdom CE: ECHR:146/1996/767/964.

[40]  (2007) 10 HKCFAR 676.

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