BALAKRISHNAN MAHESWARAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 553/2025, [2026] HKCA 633

On Appeal From [2025] HKCFI 3000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 553 OF 2025

(ON APPEAL FROM HCAL NO 606 OF 2020)

____________

____________

_________________

J U D G M E N T

_________________

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

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge (Non-refoulement Claims) YW Hew (“Judge”) on 16 July 2025 dismissing the applicant’s 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 3 April 2020. In that decision, the Board upheld the decision of the Director of Immigration (“Director”) dated 1 June 2018 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of India born in 1983 and his claim was made on the basis that if he returned to India, Ritheesh (brother of the woman that eloped with the applicant’s friend) would harm or kill the applicant due to his assistance to sneak the sister out of her family home for their elopement and, separately, a local farmer would harm or kill the applicant due to the deaths of his two sons. Details of the applicant’s background, the basis of his claim and arguments advanced before the Board as well as the Board’s reasons for rejecting his appeal are all set out in the Board’s decision: see [1] of the Form CALL-1. The Judge has set out the grounds advanced by the applicant in support of the application and his reasons for refusal of the application: see [9] – [15] of the Form CALL‑1.

Appeal to this Court

3.  On 28 July 2025, the applicant filed his Notice of Appeal against the Judge’s decision. His stated grounds of appeal were, essentially, that he was not provided with language and legal assistance which affected the preparation of his case, that the court had not provided a detailed explanation for the refusal of judicial review, that the court did not consider the risk of harm to be political rather than local which would affect the possibility of relocation, and that the court should have held a hearing for the applicant to make oral submissions.

4.  The applicant had initially elected for an oral hearing. By letter dated 28 October 2025, the court was notified by the Director that the applicant had been removed from Hong Kong in October 2025. The Registrar of Civil Appeals has subsequently directed the appeal to be referred to this court for paper disposal, we shall determine the appeal on the basis of the available documents and materials.

Discussion

5.  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.

6.  In the present case, the Board found that there was no real risk of harm upon refoulement as alleged. Setting aside the credibility issues of the applicant, the Board found that there was no alleged risk from Ritheesh (whom the applicant claimed to be a state actor) because he could leave and enter India without encountering any problems, the sister and his friend safely lived in India without encountering any problems, and Ritheesh passed away due to a heart attack in 2020. As for the alleged risk from the local farmer, the Board found that reasonable relocation outside his home area was viable for a healthy young man (as he had previously done before). 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.

7.  As to the complaint about the lack of legal and language assistance, it has been repeatedly stated by the Court of Appeal that as a matter of law, it is not the case that a non-refoulement claimant is entitled to free legal representation at all stages of the process and that the high standard of fairness required by law does not entail interpretation service being made available to an applicant all the time as he desires: Re Zunariyah [2018] HKCA 14 at [18]; Re Zahid Abbas [2018] HKCA 15 at [11] and Re Tariq Farhan [2018] HKCA 17 at [11]. We note that all the court documents filed in this appeal and in the court below were in English. It is thus clear that either the applicant was himself conversant with the English language or he had access to language assistance of his own if he found it necessary. Further, we note that the applicant was legally represented in the initial preparation of his case by the completion of the non-refoulement claim form and screening interview with the Director, which formed the basis of his present claim. Thus, we do not find the non-availability of legal representation in the processes before the court to amount to any procedural unfairness.

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. Contrary to the applicant’s grounds of appeal, the Judge did hold an oral hearing which the applicant attended and he had duly elaborated on the reasons for his decision. We are not satisfied that there is any error in the Judge’s decision.

9.  The applicant’s appeal is accordingly dismissed.