RE THAKUR SHISIR CHANDRA

CACV 41/2026, [2026] HKCA 492

On Appeal From [2026] HKCFI 171

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 41 OF 2026

(ON APPEAL FROM HCAL NO. 1116 OF 2021)

_________________

________________

_________________

J U D G M E N T

_________________

Hon Chu VP (giving the Judgment of the Court):

Introduction

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge (Non-Refoulement Claims) Lewis Law (“the Judge”) given on 13 January 2026[1] refusing to extend the time for him to apply for judicial review and dismissing his application for leave to apply for judicial review.  The intended judicial review is in respect of the decision dated 17 September 2020 of the Torture Claims Appeal Board (“the Board”) dismissing his appeal against the decision dated 4 May 2018 of the Director of Immigration (“the Director”) which rejected his non-refoulement claim having regard to the torture risk[2] , BOR 3 risk[3] , persecution risk[4] and BOR 2[5] risk grounds.

Background

2.  The applicant is a national of India born in 1990.  In April 2015, he came to Hong Kong and was permitted to remain as a visitor for 14 days.  He did not depart and surrendered to the Immigration Department on 27 April 2025.  He lodged a non-refoulement claim, which was based on a fear of being harmed or killed by his creditors because of his inability to repay a loan and having witnessed a murder committed by them; and also on account of his conversion from Hinduism to Islam.  Details of the basis of the applicant’s claim and the grounds advanced before the Board were set out in the Board’s decision[6] .  

3.  The applicant’s appeal against the Director’s rejection of his claim was heard at an oral hearing held on 2 June 2020.  The Board dismissed the appeal for the reasons given in its decision.  In gist, the Board considered the applicant’s evidence unclear, illogical and full of discrepancies and inconsistencies, and rejected his evidence and all the factual bases of his claim as incredible.  The Board further found that, even on the applicant’s case, the applicant’s claim did not meet the requirements of any of the applicable grounds both on the law and on the facts.  The Board further found state protection was available and internal relocation options were reasonably available, which would have negated or reduced any risk of harm that the applicant might face.      

The Judge’s decision

4.  The applicant filed a Form 86 on 9 April 2021 to apply for leave to judicially review the Board’s decision.  It was late by almost four months[7] . The applicant did not provide any explanation for the delay or any ground for seeking relief. 

5.  The Judge dealt with the application on the paper.  By a Form CALL-1 dated 13 January 2026, the Judge refused to extend time for the applicant to apply for judicial review and dismissed his application.  In summary, the Judge was satisfied that the Board’s decision was based on sound factual finding and did not involve any no legal error, procedural unfairness or irrationality, and concluded that the intended judicial review had no merits.

This appeal

6.  By a Notice of Appeal filed on 16 January 2026, the applicant appeals the Judge’s decision to this Court.  Other than stating that the Judge’s decision was all wrong, the Notice of Appeal does not set out any substantive grounds of appeal.

7.  The applicant’s written submissions state that: (1) the Judge failed to apply the principles of irrationality and procedural unfairness; (2) the Judge failed to apply the high standard of fairness; (3) the Judge did not analyse his claim properly; (4) the Board failed to give him sufficient opportunity to arrange relevant evidence; (5) the applicant’s life is in jeopardy and his human right not to be subject to torture is involved; (6) the Board had significantly relied on sources of news that were not officially recognized or were simply hearsay; (7) the Board failed to assess whether state protection existed in his home country; and (8) he would face hardship if he were to go back to his home country.  Additionally, the applicant put forward a new and different version for his claim, asserting that he was a member of the CPM party and that he would be pursued by the political enemies of the ruling party in the West Bengal. 

8.  At the hearing, the applicant asked to have more time to adduce evidence and documents.  He said that witnesses who saw and knew about the murder committed by his creditors would be able to come to Hong Kong in August or September 2026, and they would bring documents and proofs, such as police records and old recording of the bullet shot.  He explained that these people previously had to work and did not have time to travel to Hong Kong. 

9.  We declined to adjourn the hearing or to give the applicant more time to adduce the witnesses and/or documents.  Primarily, the applicant is seeking to adduce new evidence in this appeal.  It is trite law that to do so, the applicant must satisfy the three conditions established in Ladd v Marshall [1954] 1 WLR 1489, namely (1) the new evidence could not have been obtained at the hearing below with reasonable diligence, (2) the new evidence would significantly influence the case outcome if believed, and (3) the new evidence must be apparently credible, though not necessarily incontrovertible.

10.  It appears that the new evidence and documents that the applicant seeks to adduce have existed before the Board heard his appeal.  That the witnesses were previously busy with their work is hardly a satisfactory explanation for not adducing the documents to the Board at the appeal hearing.  The applicant therefore fails on the first requirement of showing that even with reasonable diligence he could not have obtained the new evidence and produced it to the Board. 

11.  Further, the primary decision makers are the Director and the Board.  The Court’s role in judicial review proceedings is supervisory. Judicial review proceedings does not operate as a rehearing of the applicant’s refoulement claim and does not involve an adjudication of the merits of the claim.  Evidence supporting and relating to the non-refoulement claim ought, in the first place, to be produced to the primary decision makers for consideration.  It is generally not open to an applicant in judicial review proceedings to put in evidence that had not been considered by the primary decision makers.  For these reasons, we had refused the applicant’s request for time to adduce new evidence and proceeded to hear his appeal.         

Our reasons for decision

12.  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.

13.  In the present case, the Board found significant inconsistencies and discrepancies in the applicant’s evidence, particularly regarding the allegations of the loan and the murder of the applicant’s neighbour and friend by the creditors, and the accounts of threats and assaults instigated against the applicant.  The Board found the loan agreement to be unclear, ambiguous and unreasonable, the allegations of the harm lacked credibility, the reasons for the applicant’s conversion from Hinduism to Islam and the treatment he received afterwards were inconsistent.  The Board also found no evidence that his creditors acted with the consent or acquiescence of state agents.  The Board further found, on the available country of origin information and considering that the applicant was not located by his creditors in Assam or Siliguri, that internal relocation within India was reasonably viable, and state protection would be available.  The Board concluded that the applicant failed to show any real risk of harm entitling him to non-refoulement protection under any of the applicable grounds.  All these are findings of fact open to the Board in the light of the evidence it received and for the reasons it gave.   

14.  As to the arguments advanced by the applicant in this appeal, we are of the view that they are unarguable for the following reasons:

(1)     The applicant’s arguments have not engaged with the Board’s reasons for its findings (see [13] above), and no viable grounds have been put forward to challenge the findings.  Given that the Board had rejected the factual basis of his claim, the assertion that the applicant would face risk of harm or would encounter hardship or that his human rights would be violated cannot stand.

(2)     The complaints that the Board’s decision is irrational, the proceedings before the Board are procedurally unfair, and the Board erred in the use of country of origin information are all general assertions unsupported by particulars.  

(3)     There is no basis for the complaint that the applicant was not given sufficient opportunity to arrange relevant evidence.  At the applicant’s requests made at the hearing of the appeal and in a subsequent letter, the Board granted two extensions of time to the applicant to put in additional documents.   Despite the lapse of more than three months, the applicant did not provide any document to the Board.   We have also noted (at [10] above) that the belated explanation that his witnesses were busy at work and could not provide him with the testimony or documents is not a convincing reason for the failure to produce supporting documents or other evidence to the Board.

(4)     Similarly, the complaint that the Board did not assess whether state protection existed in the applicant’s home country is without basis because the Board had fully considered the country of origin information and concluded that it was reasonably available to the applicant.

(5)     The complaints that the Judge failed to analyse the applicant’s claim and to apply the high standard of fairness are misplaced when it is not the Judge’s role in judicial review proceedings to consider the applicant’s claim afresh and also in light of the applicant’s failure to advance any ground to support his intended judicial review.

(6)     The assertion in the written submissions about being pursued by his political enemies due to his political affiliation with the CPM party is a new claim that was not raised before the Director or the Board or in the application before the Judge.  It is not open to the applicant to raise a new claim on appeal especially when it is fact-sensitive.  There is in any event no evidence to support the new claim.

15.  For the above reasons, the applicant’s appeal has no merits.  Accordingly, we dismiss the appeal.

[1] [2026] HKCFI 171

[2] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.

[3] This refers to risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[4] This refers to the risk of persecution with reference to the non‑refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.

[5] This refers to the risk of being arbitrarily deprived of life under article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[6] https://legalref.judiciary.hk/doc/ judg/html/vetted/other/en/ 2021/HCAL001116_2021_files/ the_Board's_Decision.pdf

[7] Order 53 rule 4(1) of the Rules of the High Court Cap.4A provides that an application for leave to apply for judicial review should be made promptly and in any case within three months from the date when grounds for the application first arose.