MALIK SHAHRUKH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 913/2025, [2026] HKCA 228

On appeal from [2025] HKCFI 4639

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 913 OF 2025

(ON APPEAL FROM HCAL NO. 1869 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 (Non-refoulement Claims) Martin Wong (“the Judge”) given in the Form CALL-1 and the Order dated 9 October 2025[1] refusing his application for leave to apply for judicial review against the decision of the Torture Claims Appeal Board (the “Board”) dated 31 August 2020 (the “Board’s Decision”) whereby the Board dismissed his appeal against the decision of the Director of Immigration (the “Director”) dated 5 November 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. He lodged a non-refoulement claim on the basis that, if refouled, he would be harmed or killed by his girlfriend’s family for his religious belief and political affiliation. The applicant’s non-refoulement claim was rejected by the Director, and his appeal against it was rejected by the Board on 31 August 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 22 October 2025, the applicant sought to appeal the Judge’s decision to this court and his grounds of appeal are as follows:

“1. The Applicant submits that the Director, the Adjudicator, and the Court have failed to take such argument into account or that the Director has failed to give sufficient weight to such argument before reaching the Decision.

2. The Director’s Decision, it was evident that the director had failed to appreciate or give the proper importance or weight to the presence of state Acquiescence in the Applicant’s case. This has indeed led to an unfair outcome of rejecting the Applicant’s non-refoulement claim.

3. The Adjudicator failed to make a sufficient inquiry before finalizing the determination. The Adjudicator stated that the applicant had failed to provide any credible evidence to prove material elements of his claim.

4. The adjudicator has filed to give a sufficient chance to the applicant to arrange relevant evidence to his non-refoulement claim as well as his appeal.

5. Surprisingly, the director, in his Decision, while referring to relevant COIs. Kept including meaning which suited his pre-conceived conclusion. This was a clean case of unfair attitude shown by the Director, which in itself is enough to render his Decision void.”

5.  The appeal was heard on 10 February 2026. The applicant attended the hearing in person with the assistance of a Hindi interpreter. The applicant added that he got married to a Hong Kong resident 4 months ago.

6.  In his 4-page written submission lodged on 30 December 2025, the applicant cited a number of cases and made generic submissions on the general principles of law relating to non-refoulement claims, without explaining their applicability to the present case.

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.  In the present case, no such error of law or procedural unfairness or irrationality in the decision of the Board was observed by the Judge or was pointed out by the applicant apart from the mere assertions as stated in his grounds of appeal, which were not substantiated with any specific information or elaboration as to how they apply to his present appeal.

10.  It is incumbent on the applicant to point out the Judge’s errors with sufficient particulars. We are of the view that the matters set out in the notice of appeal or his written submission failed to identify any error on the part of the Judge. They do not constitute any viable grounds of appeal and lack substance. We see no basis to interfere with the Judge’s decision.

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