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

On 7 October 2026, Deputy High Court Judge Levy granted leave to apply for judicial review in _KP v Torture Claims Appeal Board / Non-Refoulement Claims Petition Office_ HCAL 2387/2020 [2026] HKCFI 5434, finding the applicant's challenges to the Board's dismissal of his non-refoulement claim to be reasonably arguable. Ms Samantha Lau acted for the successful applicant, who was granted anonymity.

KP, a national of State K, claimed he would be harmed or killed by State K's secret service if returned, because he had distributed sensitive banking documents implicating the former president, and had joined a Telegram group opposing the State K government. The Director of Immigration rejected his claim on all four non-refoulement grounds, and the Torture Claims Appeal Board dismissed his appeal. The Board was aware throughout that KP had been diagnosed with mild cognitive impairment (MCI), scored "Below Cut-off" on a Montreal Cognitive Assessment, and had suffered a stroke (§12, §6).

The court held that:

(1) Ground 1 is arguable: the Board erred by declining to direct a psychiatric examination under s.37ZC of the Immigration Ordinance despite knowing of KP's cognitive impairment, misapprehending its role as one of "joint endeavour" to assess how memory problems affected KP's evidence-giving ability (§15–18). (2) Ground 2 is arguable: the Board's credibility assessment rested on its own assumptions about how KP ran his business and travelled in and out of State K, without properly weighing the impact of his impaired memory, contrary to the warning in _Y v SSHD_ [2006] EWCA Civ 1223 cited in _Ramos Melvin Atienza v TCAB_ [2025] 4 HKC 989 about the danger of applying one's own cultural assumptions to plausibility findings (§26). The Board also misapprehended KP's evidence on the "falsified contracts" he said the documents contained, leading it to reject his account of the documents' sensitive nature (§27). The applicant also raised a _Brown v Dunn_ point under _Re Masud MD_ [2021] HKCA 1449. (3) Ground 3 is arguable: the Board failed to assess the risk against evidence it had accepted as consistent with the country information, including unchallenged evidence about MA, the BTA Bank, and the political role of the former president (§31). (4) Ground 4 is arguable: the Board's BOR 3 analysis under Art. 3 of the Hong Kong Bill of Rights did not engage properly with _Paposhvili v Belgium_ (App No. 41738/10) and _Savran v Denmark_ (App No. 57467/15), failing to ask whether KP was a "seriously ill person" and to consider COI on the availability of treatment in State K (§38–40).

Leave was granted, with costs in the cause. KP must file and serve an originating summons within 14 days, with the Director of Immigration as an interested party.

For practitioners acting for claimants with documented cognitive or mental health impairment, this decision confirms that a tribunal aware of such evidence cannot rely on the claimant's own assurance of fitness to hear, nor on the absence of obvious psychiatric symptoms, to avoid directing a s.37ZC examination. For respondents, it is a reminder that adverse credibility findings must be evaluated against the evidence actually accepted, and that a Paposhvili-style analysis on medical grounds requires an affirmative engagement with country information on treatment availability, not a bare assertion that the source of harm is the illness itself.