MOHAMMED AKBAR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 859/2025, [2026] HKCA 226

On appeal from [2025] HKCFI 4418

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 859 OF 2025

(ON APPEAL FROM HCAL NO. 2244 OF 2020)

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J U D G M E N T

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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”) given in the Form CALL-1 and the Order dated 30 September 2025[1] refusing his application for leave to apply for judicial review against the decision of the Torture Claims Appeal Board (the “Board”) dated 2 November 2020 (the “Board’s Decision”) whereby the Board dismissed his appeal against the decision of the Director of Immigration (the “Director”) dated 7 February 2018 (the “Director’s Decision”) rejecting his non‑refoulement protection claim.

The applicant’s claim and the Judge’s decision

2.  The applicant is a national of India. The applicant’s non-refoulement claim was put on the basis that, if refouled, he would be harmed or killed by Bobby Hakim and his people who were affiliated with Trinamool Congress Party because of political disputes. The applicant’s non-refoulement claim was rejected by the Director, and his appeal against it was rejected by the Board on 2 November 2020. Details of the applicant’s claim and the Board’s reasons for rejecting the applicant’s appeal can be found in the Board’s Decision.

3.  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

4.  By a notice of appeal filed on 9 October 2025, the applicant sought to appeal the Judge’s decision to this court. For the grounds of appeal, the applicant stated that:

“1.  As a self-represent litigate I was given adequate opportunities to present my case and were fairly disadvantaged in comparison to stand for litigants.

2.  I was provided with an acute language assistant for the legal review application. This is crucial because I could not read well English writing and did not provide any help in understanding the legal proceedings. Similarly, the lack of a language assistant for filling out the appeal forms is a significant unfairness to prostitutes.

3.  I had to fill out the appeal on my own with limited help. With truly little legal guidance I could not satisfy any authorities, ground by ground. The lack of arrangement means that the Deputy Judge did not even give weight to my handicap.

4.  The Deputy High Court Judge did not adequately consider the impact and degree of unfairness resulting from the absence of language and legal help for me as a litigant and thought it not a valid ground. Due to the lack of legal support and anyone proficient in legal terminology, I was unable to elaborate on any grounds during the application for judicial review.

5.  The court did not consider my personal circumstances and upheld the Board’s decision, finding no grounds for protection under the law. They concluded I am not a genuine victim and would not face risk if I returned home. My explanations about my safety and time spent in Hong Kong were also disregarded.

6.  The Judge did not consider any matter and errors of the TCAB decision and just said, “, Bearing in mind the enhanced standard that should be adopted in scrutinizing the Board’s Decision, this court is satisfied that the Board correctly applied the law relating to all the grounds and observed a high standard of fairness. I am satisfied that the Board’s adverse credibility assessment was based on a very detailed and thorough consideration of all the applicant’s evidence, which was found to have contained lots of inconsistencies that the applicant could not satisfactorily explained I submit to you that the court has a fundamental duty to ensure that the process is procedurally fair. This includes considering the individual circumstances of the applicant, such as language barriers and lack of legal help, which may have affected their ability to present the case effectively. The Court simply said that the court is fully satisfied with the Board decision while I was not able to point out the procedural errors in the Board decision due to my lack of knowledge with legal terminology and English language.

7.  Additionally, the judge refused my Judicial Review by stating the above-mentioned paragraph without providing an explanation or discussing the matter and errors raised in my judicial review application.

8.  I hereby request for reconsider my application.”

5.  The appeal was heard on 10 February 2026. The applicant attended the hearing in person with the assistance of a Hindi interpreter and had nothing to add to his skeleton submissions.

6.  In the applicant’s skeleton submissions lodged on 12 January 2026, apart from the paragraphs of introduction and background of his claim, his arguments under paragraphs [7] – [9] are as follows:

“7. This complaint is fact-specific and does not claim a general right to legal representation or ongoing interpretation services. The issue concerns an English-only decision issued to a Hindi-speaking, unrepresented individual, who was unable to understand the reasons well enough to challenge them. The main legal question is whether, in non-refoulement cases, fairness requires reasonable measures to ensure the Board’s decision is communicated in a language the applicant understands, enabling use of procedural rights. While the lower court cited precedents denying a constant need for interpretation or counsel, those cases do not resolve whether fairness required such measures here. Inability to comprehend a lengthy decision may prejudice the applicant’s right to judicial review, which raises a legitimate public law concern.

8. The Board’s negative credibility findings may constitute a public law error, as they relied on the Applicant’s inability to recall party details and gave undue weight to unreliable sources. Given the Applicant’s limited role and language barriers, certain questions and COI sources were irrelevant or disproportionate. It is arguable the Board misjudged credibility and evidence.

9. The fairness assessment must be carried out cumulatively. The combination of the Applicant’s lack of legal representation at critical stages, comprehensible language limitations, and the Board’s issuance of a lengthy English-only decision which the Applicant could not understand are cumulative factors that much be considered together. The Court below treated strands of the Applicant’s complaint in isolation and did not assess their combined effect on the fairness of the process. That approach gives rise to an arguable error in the application of the enhanced standard of fairness.”

Our reasons for decision

7.  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)).

8.  Further, the assessment of evidence, country of origin information, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director. The court below will not intervene by way of judicial review unless there is an error of law, procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022.

9.  We are unpersuaded by the Applicant’s complaint of lack of legal and language assistance. As a matter of law, a non-refoulement claimant is not entitled to free legal representation at all stages of the process, and the high standard of fairness required by law would not entail an interpretation service to be made available at any time as the applicant desired. See Re Gurnishan Singh [2018] HKCA 704 at §§11 and 13. It is further noted that the Applicant was able to, either by himself or with assistance from others, lodge with the court applications written in comprehensible English.

10.  Further, the Judge has given her reasons as to this complaint at [10] and [11] in the Form CALL-1. Yet, apart from the assertions made in his grounds of appeal and his skeleton submissions as quoted above, the applicant did not provide any specific information as to how the Judge has erred in her reasoning. Accordingly, there is no merit in his assertions and we see no prejudice suffered by the applicant from the alleged lack of language or legal assistance.

11.  It is incumbent on the applicant to point out the Judge's errors with sufficient particulars. In our view, the matters set out in the notice of appeal or his skeleton submissions do not constitute any viable grounds of appeal and lack substance. We see no basis to interfere with the Judge’s decision.

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