KHAROTAI HAYAT GUL v. TORTURE CLAIMS APPEAL BOARD

CACV 1244/2025, [2026] HKCA 323

On Appeal From [2025] HKCFI 6262

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 1244 OF 2025

(ON APPEAL FROM HCAL NO 1985 OF 2025)

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JUDGMENT

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Hon Chow JA (giving the Judgment of the Court):

1.  This is the Applicant’s appeal against the order of Deputy High Court Judge Michael Wong (“the Judge”) dated 17 December 2025 (“the Order”) refusing to grant leave to the Applicant to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 20 August 2025 (“the Board’s Decision”), whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 30 May 2025.

2.  The Applicant alleges that, if refouled to Afghanistan, he will be harmed or killed by a terrorist gang of Taliban, having once been kidnapped by five masked men who demanded his brother to pay a ransom of 2 million Pakistan Rupees for his release in February 2024.  The Applicant’s background, the basis of his claim, the findings of the Board and its reasons for dismissing the Applicant’s appeal against the Director’s decision have been set out in detail in the Board’s Decision, and referred to by the Judge in the Judge’s decision (see §§1, 2, 6 and 7 of the CALL-1 Form).  We do not propose to repeat them here.

3.  The Judge’s reasons for dismissing the Applicant’s leave application are set out at §§13-27 of the CALL-1 Form.  In gist, the Judge found that the Applicant had not advanced any or any proper grounds for his intended judicial review of the Board’s Decision in the Form 86, his supporting affirmation dated 31 August 2025, or at the hearing before the Judge. The Judge considered that there were no errors or law, procedural unfairness or irrationality in the Board’s Decision.      

THIS APPEAL

4.  In his Notice of Appeal filed on 30 December 2025, the Applicant states that he disagrees with the decisions of the Director and the Board, and alleges that they did not investigate into his case.  He also complains that his case was not determined fairly. 

5.  In his written submissions lodged on 28 January 2026, the Applicant asserts, amongst other matters, the following:

(1)     The decisions of Director and/or the Board were unreasonable, unfair and irrational, and were a result of procedural errors[1].

(2)     The Director failed to appreciate or give proper importance or weight to the presence of state acquiescence[2].

(3)     The Board acted unreasonably and in a procedurally unfair manner by placing too much reliance on country of origin information (“COI”) without taking into account his personal circumstances[3].

(4)     The Director failed to consider or properly consider the relevant COI showing state protection would not be available to him in his home country[4].

(5)     The Board relied on unofficial materials without properly investigating into his claim[5].

6.  The Applicant did not appear at the hearing of the appeal.

DISCUSSION

7.  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 was a fresh application for judicial review (see Nupur Mst v Director of Immigration [2018] HKCA 524 at §14(6)).

8.  Further, the assessment of evidence, COI, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director.  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: Re Kartini [2019] HKCA 1022, at §13.  No such error of law or procedural unfairness or irrationality in the decision of the Board is shown in the present case.

9.  The matters raised in the Applicant’s Notice of Appeal and written submissions are all new points which were not raised in his leave application below.  He is not entitled to raise these new points for the first time in the Court of Appeal.  In any event, they are all general assertions without particulars, and mainly concern the assessment of evidence, COI and state protection by the Director and the Board.  They do not give rise to any valid ground of appeal against the decision of the Judge.   

10.  The Applicant has failed to raise any viable ground of appeal against the Order. 

11.  The Applicant’s appeal has no merits, and is dismissed.

[1] See §§2 and 9-11 of the Applicant’s written submissions.

[2] See §§3-6 of the Applicant’s written submissions.

[3] See §7 of the Applicant’s written submissions.

[4] See §§7 and 8 of the Applicant’s written submissions.

[5] See §12 of the Applicant’s written submissions.