Re Zurmati Nawab

CACV 788/2026, [2026] HKCA 1845

On appeal from [2026] HKCFI 4021

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 788 OF 2026

(ON APPEAL FROM HCAL NO. 1520 OF 2022)

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J U D G M E N T

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Hon K Yeung JA (giving the Judgment of the Court):

Introduction

1.This is the applicant’s appeal against the decision of Deputy High Court Judge K.W. Lung dated 21 July 2026[1] (the “Judge” and the “Judge’s Decision”) dismissing his application for leave to apply for judicial review.  The intended judicial review was against the decision dated 25 November 2022 of the Torture Claims Appeal Board (the “Board” and the “Board’s Decision”) dismissing his appeal against the decision dated 30 November 2018 of the Director of Immigration rejecting the applicant’s non-refoulement claim (the “Director” and the “Director’s Decision”).

Background

2.The applicant is a national of Afghanistan born in 1993.  He entered Hong Kong illegally on 13 November 2015 and surrendered to the Immigration Department on 25 February 2016.  He lodged a non-refoulement claim on 29 March 2017.  His claim was assessed on torture risk[2], BOR 3 risk[3], persecution risk[4] and BOR 2[5] risk grounds.  His claim was made on the basis that if refouled, he would be harmed or killed by what was described as the Islamic terrorist group, the Taliban.  He claimed that since 2010, the Taliban had frequently disturbed his village, and between 2014 and 2015 he was abducted by the Taliban and forced to provide information about a police post in his village, which was attacked later.  He also claimed that he was taken by the Taliban to a training camp for weapons training.  The camp was subsequently attacked in an airstrike by the Afghan and US militaries.  He later got arrested and was tortured by the Afghan police who suspected him of being a Taliban member and was subsequently released.  Details of the applicant’s background, the basis of his claim and the Board’s reasons for rejecting his appeal were set out in the Board’s decision[6].

3.By a Form 86 filed on 16 December 2022, the applicant applied for leave to seek judicial review of the Board’s Decision.  His grounds for seeking relief were that the Board erred in rejecting his case which showed that there was bombing, kidnapping and killing in his area.  He was injured by the police and believed his brother was killed after he reached Hong Kong.  He said the situation in Afghanistan had been worse than before.  He said that it was unreasonable for the Board to require physical proof from him and to pick on minor discrepancies in his case.  The Judge heard his application at an oral hearing on 6 July 2026.  By a Form CALL-1 dated 21 July 2026, the Judge dismissed his application for those reasons given in [12] to [16].  In gist, the Judge found that the reasons given were bare assertions without evidence, and the applicant had admitted that he was unable to say that the Board’s decision was wrong.  The applicant failed to show any realistic prospect of success in the intended judicial review.

Appeal to this Court

4.On 29 July 2026, the applicant filed a Notice of Appeal against the Judge’s Decision.  His stated grounds of appeal are that: (1) his claim is genuine, and that he will provide more information in order to prove that his claim is authentic; (2) the Hong Kong government can let him relocate to another safe country other than Afghanistan; (3) he will not be protected because his brother was not a person of interest and yet had to face the consequences. 

5.As the applicant did not lodge any written submissions, the scheduled hearing of his appeal was vacated pursuant to the directions of the Court.  We therefore determine the appeal on the basis of the available documents and materials.  

Discussion

6.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.

7.In the present case, the Board found the applicant’s claim to be a “bare claim”.  The Board identified significant credibility issues.  For instance, he asserted that he provided the Taliban with information about a Government police post which the Board assessed that the Taliban already knew[7]. He claimed that he had disclosed the location of a Taliban camp to the police but the camp was already known to the Government and the US forces[8].  The Board characterised his involvement with the Taliban as “one of passivity”[9].  It also found that he did not fall within any of the 18 risk profiles identified in the European Union Agency for Asylum Guidance.  The Board concluded on the basis of the evidence and on the country of origin information (COI) that the applicant was not a person of interest to the Taliban and faced no real risk if returned[10].  The Board thus held that the applicant had failed to show any real risk of harm entitling him to non-refoulement protection under any of the applicable grounds[11].  Whilst, the Board rejected the Director’s submission that internal relocation was available, it assessed that the applicant could return to his home area of Zurmat[12].

8.In this appeal, the applicant states that his claim is genuine and that he will provide more information to address deficiencies in his evidence.  These are in substance an invitation for this Court to re-examine the factual findings of the Board and to re-assess the weight of the evidence.  This is not the function of this Court on an appeal against the refusal of leave to apply for judicial review.  The Board’s conclusion on credibility and risk were findings of facts open to it on the evidence and COI before it.  The applicant has failed to show any reasonably arguable public law error in relation to the Board’s decision.

9.Furthermore, the applicant’s suggestion that the Hong Kong government can relocate him to a safe country other than Afghanistan is not a matter which falls within the scope of the non-refoulement screening mechanism or the judicial review of the Board’s Decision.  It is not a ground upon which the Board’s Decision or the Judge’s Decision could be impugned.

10.As for the applicant’s contention in relation to his brother’s situation, this does not demonstrate any error in the Board’s reasoning which was an assessment on the applicant’s own circumstances and the evidence relating to him. 

11.More importantly, the applicant has failed to demonstrate any error in the Judge’s Decision or to advance any viable ground of appeal against the same.  We are satisfied that the intended judicial review has no realistic prospect of success.  

12.For the reasons above, the appeal is dismissed.

The applicant, unrepresented, acted in person.

[1]  [2026] HKCFI 4021.

[2]  This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.

[3]  This refers to risk of torture or cruel, inhuman or degrading treatment or punishment under Article  3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[4]  This refers to the risk of persecution with reference to the non‑refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.

[5]  This refers to the risk of being arbitrarily deprived of life under article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[6]  https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2022/HCAL001520_2022_files/the_Board's_Decision.pdf

[7]  §83 of the Board’s Decision.

[8]  §85 of the Board’s Decision.

[9]  §87 of the Board’s Decision.

[10]  §107 of the Board’s Decision.

[11]  §§109 to 115 of the Board’s Decision.

[12]  §§73 and 105 of the Board’s Decision.