MAHYAVANSHI RAJESHBHAI BALUBHAI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 938/2025, [2026] HKCA 189

On Appeal From [2025] HKCFI 4656

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 938 OF 2025

(ON APPEAL FROM HCAL NO 1910 OF 2020)

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J U D G M E N T

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Hon Eugene Fung J (giving the Judgment of the Court):

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge (Non-Refoulement Claims) Martin Wong (“Judge”) on 14 October 2025 dismissing the application for leave to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”) dated 21 May 2020. In that decision, the Board upheld the decision of the Director of Immigration (“Director”) dated 3 September 2018 rejecting the applicant’s non‑refoulement claim.

Background

2.  The applicant is a national of India born in 1970 and his claim was made on the basis that if he returned to India, local gang members and some Muslim persons would harm or kill him due to rival political and religious affiliations. 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 have all been set out in the Board’s decision: see [8] of the Form CALL-1. The Judge has 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 [9] – [13] of the Form CALL‑1. We shall not repeat them here.

Appeal to this Court

3.  On 27 October 2025, the applicant filed his Notice of Appeal against the Judge’s decision. His stated grounds of appeal were, essentially, that his life was still in danger and that he would die there if refouled.

4.  The applicant has lodged written submissions in which he stated that the Director failed to give proper weight to the presence of state acquiescence, that the Board placed too much weight on country of origin information instead of the applicant’s personal background and experience, and that the Board made findings which should have resulted in the appeal being allowed. The applicant did not provide any particulars of how his submissions relate to his own case. Moreover, the applicant did not identify any errors of the Judge in dismissing his application for leave to apply for judicial review.

5.  As the applicant did not appear at the scheduled hearing, we shall accordingly 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 that there was no real risk of harm upon refoulement as alleged, because the applicant’s claim was not credible, key elements of his evidence were not reliable, and the risk of harm was low. These are findings of fact open to the Board based on the evidence it received and for the reasons it gave. Given the absence of probative evidence from the applicant, the Board did not consider it necessary to consider the availability of reasonable state protection or internal relocation. The applicant has failed to show any reasonably arguable public law error in relation to the Board’s decision.   

8.  Equally, 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 not satisfied that there is any error in the Judge’s decision.

9.  The applicant’s appeal is accordingly dismissed.