MOAZZAM FIROZE v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 175/2025, [2025] HKCA 812

On Appeal From [2025] HKCFI 886

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 175 OF 2025

(ON APPEAL FROM HCAL NO 2581 OF 2019)

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge K. W. Lung (“Judge”) on 1 April 2025[1] refusing to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”) dated 29 August 2019.  In that decision, the Board upheld the decision of the Director of Immigration (“Director”) dated 11 April 2018 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of India born in 1993.  He entered Hong Kong as a visitor on 28 November 2015 and was permitted to stay until 12 December 2015, but he overstayed.  On 14 December 2015, the applicant surrendered to the Immigration Department.  He subsequently raised a claim for non-refoulement protection by way of written signification dated 30 August 2016.  The applicant’s claim was made on the basis that if he returned to India, his creditor would harm or kill him due to his inability to repay a loan.  The factual background of the applicant’s claim was set out at [9] to [15] of the Board’s decision.

3.  By notice of decision dated 11 April 2018, the Director assessed the applicant’s claim in relation to all applicable risks and determined it against him.  Those grounds are BOR 3 risk,[2] persecution risk,[3] torture risk[4] and BOR 2 risk.[5]

4.  The applicant appealed to the Board against the Director’s decision.  An oral hearing was held on 15 April 2019, during which the applicant gave evidence and answered questions from the Board. The Board did not find the applicant’s claim to be credible, because his evidence at the hearing was vague, general and inconsistent with previous written claims in important aspects.  The applicant was vague and inconsistent in his account of the details pertaining to the fire incident that burned down his business and to the incidents involving encounters with his creditor.  The Board further found that the applicant did not substantiate his claim at all with any supporting documents, such as proof of ownership of his business or reports of the fire incident that destroyed his business.

5.  The Board proceeded to consider the risk of harm faced by the applicant if he was refouled to India. It found there was in fact no real risk of harm if the applicant returned to India, because it was satisfied that the applicant’s claims completely lacked credibility, so that there would not be any grounds to find real risk of ill-treatment or any genuine and substantial risk under any of the four applicable grounds.  The Board further found that internal relocation to Bihar, where his family presently lives, would in any event be a viable option for the applicant.

6.  In conclusion, the Board held that there was no real risk of harm for the applicant in the event of refoulement to India.  By its written decision dated 29 August 2019, the Board dismissed the applicant’s appeal in respect of all the applicable grounds and confirmed the Director’s decision.

The Judge’s decision in the court below

7.  On 4 September 2019, the applicant filed a Form 86 to seek leave from the Court of First Instance to apply for judicial review of the Board’s decision.  He did not specify any ground for judicial review in the Form 86 or in the accompanying affirmation.  In the latter, he simply annexed the Board’s decision, the hearing bundle compiled for the hearing before the Board, and a copy extract of his Indian passport.

8.  The Judge considered the application on the basis of the documents and the submissions of the applicant at the hearing fixed on 24 February 2025.  On 1 April 2025, the Judge issued his decision, refusing to grant leave to apply for judicial review.  The reasons were set out in [13] to [17] of the Judgment as follows:

“ 13. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

14. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant complained that the Board did not accept his evidence and he asked the Court to review it.

15. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

‘ 13. (1) … …Assessment of evidence and COI materials and 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.’

16. The applicant has raised no valid ground to challenge the Board’s findings.

17. The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.”

Appeal to this Court

9.  On 7 April 2025, the applicant filed his Notice of Appeal against the Judge’s decision.  His stated grounds of appeal were, essentially, that he would face hardship if refouled, that the Board relied on unofficial sources of information or hearsay, and that the Board made groundless speculations. 

10.  On 22 July 2025, the applicant applied for legal aid and the Memorandum of Notification of an Application for Legal Aid was filed with the court on 24 July 2025.  Pursuant to section 15 of the Legal Aid Ordinance (Cap. 91) and regulation 7A of the Legal Aid Regulations (Cap. 91A), these proceedings would be stayed for 42 days.  In view of the delay in the application for legal aid, this Court made an order on 1 August 2025 to lift the stay.

11.  The applicant has lodged written submissions in which he repeats the basis of his non-refoulement claim and states that the immigration case officer through WhatsApp Messenger threatened to detain him if he did not withdraw his case.  He did not attach any supporting documents, such as a copy of the WhatsApp conversations between himself and the immigration case officer.  The applicant further states that he wants more time to obtain a document from India without stating any particulars.

12.  Shortly before the scheduled hearing, on 18 August 2025, the applicant lodged a letter with the court together with a declaration said to have been made by Firoze Ahmed (the applicant’s father) dated 25 June 2025 in the English language, an Indian unique identification document of Firoze Ahmed, and a single-page extract of a newspaper (page 3 only) in the Hindi language.  In the letter, the applicant stated that the attached documents were from his lawyer and they showed that he would be killed if he returned to India.  The declaration was written in English and was essentially about the applicant’s father severing all ties with the applicant, due to the applicant’s debt and the harassment of his family members as a result.  The unique identification document presumably supports that the declaration was, in fact, made by the applicant’s father.

13.  At the hearing, the applicant explained that the extract newspaper was from the newspaper entitled “Samagya” issued on 18 June 2025 and he identified one particular news article as being relevant to his case.  Through the court interpreter’s translation, the court was told that the newspaper article was about a violent incident at the home of the applicant’s family at the hands of the applicant’s creditor seeking repayment of the applicant’s loan some 10 years later and that a police investigation was instigated.  The applicant explained that his father was seriously injured by his creditor and his men in the violent incident, so that his father made the declaration to cut ties with him.  He further explained that he asked his friends about his family’s situation and a friend’s uncle secretly gave him a copy of his father’s declaration through WhatsApp Messenger.  In addition, the applicant mentioned he would be able to submit a first information report (FIR) after a few days, but he did not specify how that would be relevant to his case.

Discussion

14.  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.

15.  In the present case, the Board found that there was no real risk of harm upon refoulement as alleged, because the applicant’s claim completely lacked credibility, so that there awere no grounds to find real risk of ill-treatment or any genuine and substantial risk of harm, and in any event internal relocation to Bihar would be a viable option for him.  These are findings of fact open to the Board based on the evidence it received and for the reasons it gave. The applicant has failed to show any reasonably arguable public law error in relation to the Board’s decision.

16.  As to the new evidence, namely the declaration of the applicant’s father together with the unique identification document and the newspaper article referred to above, since they came into existence and related to events after the hearing below, whether they can be adduced in evidence is not governed by the usual Ladd v Marshall conditions[6] but is subject to a wide discretion of this court albeit exercised sparingly with due regard to the need for finality in litigation: Re China Fishery Group Ltd [2020] HKCA 169 at §26.

17.  In relation to the newspaper article, we are not satisfied that the new evidence is apparently credible.  There is reason to suspect that the article relied on by the applicant was not actually published in the newspaper but only inserted in the copy produced to the court.  In any event, we are not satisfied that either piece of the new evidence would have an important influence on the case.  In particular they could have no impact at all on the Board’s conclusion that the applicant faced no real risk of harm upon refoulement since internal relocation would be a viable option, even if the applicant’s version of events was accepted.  As such, and there being no other ground for admitting the documents, they should not be accepted as new evidence in the appeal.

18.  Further, 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.

19.  The applicant’s appeal is accordingly dismissed.