RE KHAJA PASHA

CACV 221/2026, [2026] HKCA 985

On Appeal From [2026] HKCFI 671

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 221 OF 2026

(ON APPEAL FROM HCAL NO. 1333 OF 2020)

________________________

________________________

________________________

J U D G M E N T

________________________

Hon Cheng J (giving the Judgment of the Court):

Introduction

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge (Non-Refoulement Claims)  YW Hew (“the Judge”)  given on 5 March 2026[1] refusing his application for leave to apply for judicial review against the decision dated 22 June 2020 of the Torture Claims Appeal Board (“the Board”).  The Board had dismissed his appeal against the decision dated 26 March 2018 of the Director of Immigration (“the Director”)  which in turn had rejected the applicant’s non-refoulement claim having regard to the torture risk[2], BOR 3 risk[3], persecution risk[4] and BOR 2[5] risk grounds.

Background

2.  The applicant is a national of India born in 1987. He last entered Hong Kong on 13 March 2015 as a visitor and was allowed to stay until 27 March 2015.  He subsequently overstayed and surrendered to the Immigration Department on 9 April 2015.  He was subsequently released on recognisance and lodged his non-refoulement claim on 12 August 2015. His claim was made on the basis that if he returned to India, he would be harmed or killed by his creditor “AS” as he failed to repay a loan which was used to fund his now defunct garment business.  Details of the applicant’s background, the basis of his claim and the arguments advanced before the Board as well as the Board’s reasons for rejecting his appeal were all set out in the Board’s decision[6]. 

3.  The Board found material inconsistencies in the applicant’s written and oral testimonies regarding the loan amount and the interest he agreed to repay to AS.  The Board found it implausible that the applicant could not remember the loan details given that the loan was the basis of his fear, and that there was no genuine attempt by the applicant to consistently substantiate his story.  The Board thus found that his claim about the loan was not true, and so was his claimed fear of violence from AS or anyone else.  The Board further noted that the applicant offered no cogent reason why he could not stay with his family in India, as his own evidence showed his family had moved in early 2016 and had no further problems.  The applicant also raised a late claim about violence against Muslims in India but was rejected by the Board as unsupported by evidence or the country-of-origin information.  The Board thus concluded that the applicant had failed to show any real risk of harm entitling him to non-refoulement protection under any of the applicable grounds.

The Judge’s decision

4.  The Judge set out the grounds advanced by the applicant in support of the application for leave to apply for judicial review and his reasons for refusing leave: see [8]-[18] of the Form CALL-1. In essence, he found that most of the applicant’s grounds were generic, vague and unparticularised assertions, without reference to any underlying facts or matters establishing how they arose in relation to the Board’s decision. For grounds 12-14, they were merely attempts to re-argue the merits. In any event, the Judge reviewed the Board’s decision, and could not identify any reasonably arguable case of procedural unfairness, error of law, or irrationality.

This appeal

5.  On 10 March 2026, the applicant filed his Notice of Appeal seeking to appeal against the Judge’s decision, in which he stated that he disagreed with the decision of the Judge which had simply followed the Board’s decision, and that there were severe problems in his country.

6.  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 will therefore proceed to determine the appeal on the basis of the available documents and materials.

Discussion

7.  In assessing the merits of the appeal, we 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.

8.  The Board’s findings as to the applicant’s credibility and the truth of his claims were findings of fact open to the Board based on the evidence it received and for the reasons it gave. The applicant failed to show any reasonably arguable legal error, procedural unfairness or irrationality in the Board’s decision. 

9.  In a document exhibited to the applicant’s affirmation in support of the Form 86, the applicant set out a number of general assertions and legal principles without indicating how they applied to his case.  He also repeated his claim that he faced a risk of torture and persecution in India.  The Judge considered this document but nevertheless could not identify any grounds for challenging the Board’s decision. The applicant has not been able to demonstrate any error in the decision of the Judge or advance any viable ground of appeal against the Judge’s decision. We are satisfied that the Judge gave proper and adequate reasons for his conclusion that the intended judicial review has no prospect of success.

10.  The applicant’s appeal is accordingly dismissed.