ALAM SHAHID v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 181/2025, [2025] HKCA 886

On Appeal from [2025] HKCFI 1316

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 181 OF 2025

(ON APPEAL FROM HCAL NO 324 OF 2020)

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J U D G M E N T

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Hon Cheng J (giving the Judgment of the Court):

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge To (“Judge”)  on 3 April 2025[1] 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 25 February 2020 for want of prosecution.  In that decision, the Board upheld the decision of the Director of Immigration (“Director”)  dated 15 February 2018 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of India born in 1994.  He last entered Hong Kong as a visitor on 15 September 2015 and was permitted to stay until 29 September 2015, but he overstayed.  The applicant surrendered to the Immigration Department on 2 October 2015 and lodged a claim for non-refoulement protection on 23 May 2016. His claim was made on the basis that if he returned to India, his creditor (Mohammed Khan)  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 [2] to [10] of the Board’s decision.

3.  By notice of decision dated 15 February 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.  The appeal was determined without an oral hearing as the Board found that no worthwhile and effective representation could be made and that there would be no procedural unfairness to the applicant.  The Board appeared to accept the applicant’s claim as stated and did not challenge the applicant’s credibility.  

5.  On this basis, 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 there was low intensity and frequency of past ill-treatment by his creditor, there was no state involvement, reasonable state protection would be available, and internal relocation to anywhere in India would be a viable option for him. 

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 25 February 2020, 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 6 March 2020, 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 (“the Leave Application”).  His grounds for judicial review were, essentially, that the decisions of the Director and the Board were wrong and unreasonable, that the Director failed to give weight to the presence of state acquiescence, that there was no oral hearing, that the Board relied on country of origin information too heavily and did not consider the applicant’s personal background and experience, that the Board unreasonably required the applicant to respond to questions on the spot, that the Board failed to consider corruption in India, and that the Board dismissed the appeal based on findings that ought to have led it to allow the appeal. 

8.  On 11 February 2025, the Applicant applied to withdraw his application for leave for judicial review by way of letter (“the Withdrawal Application”).  To ensure that the withdrawal was valid and had been properly made, the Judge gave directions by a letter of 12 March 2025 for the applicant to file an affirmation or statement to confirm, inter alia, that the withdrawal was being made of his own free will, and that he understood that if the Withdrawal Application were approved, the Board’s decision would stand.  The applicant was also advised that if no affirmation or statement was filed as required, the Withdrawal Application would be refused, and the Leave Application might be dismissed for want of prosecution, unless he informed the Court of his intention to proceed with the Leave Application within fourteen days of the directions. The Court’s records show that the correspondence address used by the applicant during the proceedings in the Court below was identical to the one given by the applicant in lodging this appeal (“Address”). The letter of 12 March 2025 with the Judge’s directions was sent to the Address. However, no response was received from the applicant by the deadline.  

9.  The Court sent a further letter to the applicant on 27 March 2025 at the Address, informing him of the estimated handing down date of the Judge’s decision.

10.  In all the circumstances, the Judge considered it appropriate to determine the Leave Application without an oral hearing. On 3 April 2025, the Judge issued his decision, refusing the Withdrawal Application, and also the Leave Application.  The reasons were set out in [2] to [4] of the Form CALL-1 as follows:

“ 2. On 11 February 2025, the Applicant applied by letter to withdraw his leave application (the “withdrawal application”)  asserting that it is now safe for him to return to his home country and that he wishes to return. To ensure that the withdrawal is valid and properly made, the Applicant was given directions by letter dated 12 March 2025 (the “directions letter”)  to file an affirmation or a statement confirming:

(a)  that his withdrawal application is made out of his own free will;

(b)  that he will be safe to return to his home country; and

(c)  that he understands that if his withdrawal application is approved, the Decision of the Board dismissing his appeal against the decision of the Director of Immigration refusing his application for non-refoulement protection remains in force.

He was also advised that if no affirmation or statement shall have been filed as required, his withdrawal application will be refused and the leave application may be dismissed for want of prosecution unless he informs the Court of his intention to proceed with the leave application within 14 days of the directions letter.

3. Fourteen days have lapsed since the date of the directions. As at the date of this Form CALL-1 the Applicant has not filed any affirmation or statement or responded. In the light of the Court’s directions, the Applicant must understand that if he does not respond, his withdrawal application may be refused and his leave application may be determined or dismissed for want of prosecution. His withdrawal application also evinces a lack of intention to prosecute his leave application.

   4.  Having considered the nature and grounds of the application, the issues raised, the Decision, the papers, the applicable legal principles and all the circumstances, the Court considered that the leave application may be justly determined on paper without an oral hearing. Having also rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that there is no apparent errors of law or procedural unfairness in the Decision or in the making of the Decision. The Decision is not Wednesbury unreasonable or irrational. The Court therefore considered it appropriate to refuse his withdrawal application and dismiss his leave application for want of prosecution.”

11.  A copy of the Judge’s decision and order was posted to the applicant at the Address, under cover of a letter dated 3 April 2025.

12.  On 8 April 2025, the applicant’s Notice of Appeal was filed at the Appeals Registry. It was signed by the applicant and stated the Address as the applicant’s.

13.  On 9 April 2025, the Court received by post the letter which had been posted to the applicant on 12 March 2025 with the Court’s directions regarding the Withdrawal Application, with a post office chop on the envelope. Somebody had ticked the box “No such person”.

14.  In contrast, the letters from the Court dated 27 March 2025 (informing the applicant of the estimated handing down date of the Judge’s decision)  and 3 April 2025 (enclosing a copy of the Judge’s decision)  were never returned undelivered.

Appeal to this Court

15.  On 8 April 2025, the applicant filed his Notice of Appeal against the Judge’s decision to refuse the Leave Application.  His stated grounds of appeal were, essentially, that he would face hardship if refouled, that the Board relied on sources of information that were not officially recognised, that the Board relied on outdated cases, and that the Board consequently engaged in groundless speculation.  In his Notice of Appeal, the applicant sought to appeal against the Leave Application, but did not mention the order refusing his Withdrawal Application .  Strictly speaking, the refusal of the Withdrawal Application is not under appeal.  Nevertheless, we will make some brief observations about this aspect below.   

16.  As the applicant did not lodge any skeleton argument, the scheduled hearing of his appeal was vacated pursuant to the directions of the Court.  We shall accordingly determine the appeal on the basis of the available documents and materials.

Discussion

17.  Given that the Court’s letter of 12 March 2025 was returned to the Court, there is doubt as to whether the applicant had notice of the Judge’s directions given in that letter. This doubt is however tempered by the fact that the Court’s letters of 27 March 2025 and 3 April 2025 were not returned undelivered. Indeed, the applicant must have received the Court’s letter of 3 April 2025 in order for him to have known of the Judge’s decision, or else he would not have been in a position to lodge his appeal against it.

18.  In the circumstances before the Judge at the time of his decision of 3 April 2025, when the Court’s letter of 12 March 2025 had not yet been returned to the Court, the Judge cannot be faulted for proceeding on the basis that the applicant had failed to respond.  Accordingly, the Judge cannot be faulted for refusing the Withdrawal Application, on the basis that the applicant had not confirmed an intention to withdraw the Leave Application. Similarly, he cannot be faulted for refusing the Leave Application on the ground of want of prosecution, on the basis that the applicant had not confirmed his intention to proceed with it. We further note that in any event, the Judge did also consider the substance of the Board’s decision, and satisfied himself that there were no apparent errors of law or procedural unfairness in the Board’s decision, or the making thereof, and that it was not Wednesbury unreasonable or irrational, before coming to his decision to refuse the Leave Application.

19.  In the Notice of Appeal, the applicant did not take issue with the way in which the Judge proceeded, or identify any other error on the part of the Judge.   

20.  Instead, the applicant’s complaints in the Notice of Appeal were directed against the decision of the Board.  However, the role of the Court in an application for 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. 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]. 

21.  In the present case, the Board found that there was no real risk of harm upon refoulement as alleged, because there was low intensity and frequency of past ill-treatment, there was no state involvement, reasonable state protection would be available, and internal relocation to anywhere in India would be a viable option for the applicant.  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 identify any reasonably arguable public law error in relation to the Board’s decision.  As for the applicant’s complaints about the Board’s reliance on Country of Origin Information cited at [29] and [30] of its decision, the complaints consist of mere general and bald assertions regarding the decision of the Board without any particulars.  They do not constitute viable grounds of appeal: see Re Salim Ahmed [2020] HKCA 244 at [20].

22.  As mentioned, in dismissing the Leave Application for want of prosecution, the Judge considered (inter alia)  the Board’s decision, and he was satisfied that there were no apparent errors of law, procedural unfairness, unreasonableness or irrationality in the Board’s decision or the making of the decision.  We agree with the Judge’s assessment.  

23.  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. 

24.  The applicant’s appeal is accordingly dismissed.