MALLICK RASIDUL HOQUE v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 321/2026, [2026] HKCA 1017

On Appeal From [2026] HKCFI 1243

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 321OF 2026

(ON APPEAL FROM HCAL NO. 748 OF 2021)

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JUDGMENT

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Hon Anthony Chan JA (giving the Judgment of the Court) :

1.  This is the Applicant’s appeal against the order of Deputy High Court Judge (Non-refoulement Claims) Jeffrey Chau (“Judge”) dated 18 March 2026 dismissing his application for leave to apply for judicial review (“Leave Application”) against the decision of the Torture Claims Appeal Board (“Board”) dated 3 January 2020 (“Board’s Decision”) by which the Board upheld the decision of the Director of Immigration rejecting the Applicant’s non-refoulement claim.

2.  The Applicant is a national of India.  The basis of his non-refoulement claim had been set out in detail in the Board’s Decision, which may be viewed online via the hyperlink contained in the Form CALL-1 dated 18 March 2026, [4].  In gist, the Applicant claims that if he returns to his home country, he will be harmed or killed by his cousins due to a land dispute.

3.  The Applicant’s application for leave to apply for judicial review was not made within the statutory timeframe of 3 months from the Board’s Decision.  After considering the length of the delay, the reason for the delay, the merits of the intended application, and prejudice to public administration, it was dismissed by the Judge and details of the Judge’s reasons can be found in the Form CALL-1, [9] to [17].

4.  By a Notice of Appeal filed on 30 March 2026, the Applicant appeals against the Judge’s decision.  The Applicant contends that :

“I am not agree with the decision of the Court of First Instance. My problem is still exist in my home country. If I return there I will be killed by my enemies.”

5.  In his skeleton argument lodged on 19 May 2026, the Applicant reiterated his claim that his life would be at risk if refouled and that he would be tortured or killed his enemies.  His arguments may be summarized as follows :

(a)     the Judge failed to apply the principles of rationality, procedural fairness and high standard of fairness, and also failed to analyse his claims properly;

(b)     the Board failed to give him sufficient chance to arrange for relevant evidence and failed to evaluate whether a consistent pattern of gross and mass violation of human rights exists in his home country;

(c)     the Board relied on source of news which was not officially recognised or was simply hearsay;

(d)     the Board failed to analyse and assess the issue of state protection in his home country.

6.  At the hearing of this appeal, the Applicant said that there is another problem at his home country, namely, the State Government has recently changed and it is anti-Muslim.  People in his state, including his father and brother have been threatened and tortured by the State Government with the connivance of the Central Government.  It is risky for him to return.

7.  The general approach of this Court in dealing with appeals in non-refoulement cases has been 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, this Court 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.  This Court’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 Director and the Board. The Court will not intervene by way of judicial review unless there is an error of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022 at [13].

9.  In the present case, the Judge found no error of law, procedural unfairness or irrationality in the Board’s Decision[1].  In our view, the matters set out in the Applicant’s Notice of Appeal and skeleton argument are bare assertions devoid of proper particulars.  They neither demonstrate any error on the part of the Judge, nor constitute any viable grounds of appeal.  We see no basis to interfere with the Judge’s decision.

10.  In respect of the matters raised at the hearing by the Applicant, similar allegations of ill-treatment and killing of Muslims by Hindus were made by him as part of his non-refoulement claim.  It was also alleged that the Indian Government had turned a blind eye to such problems.  However, the Board took the view that the allegations were not well-founded[2].  Insofar as the matters raised at the hearing involve recent development, they are not within the scope of this appeal.

11.  In the premises, this appeal is dismissed with no order as to costs.

[1] Form CALL-1, [15].

[2] Board Decision, [79].