MOHAMMED ASGAR v. TORTURE CLAIMS APPEAL BOARD

CACV 462/2026, [2026] HKCA 1267

On Appeal From [2026] HKCFI 2470

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 462 OF 2026

(ON APPEAL FROM HCAL NO 1000 OF 2021)

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J U D G M E N T

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Hon D’Almada Remedios J (giving the Judgment of the Court):

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge Michael Wong (“Judge”) on 29 April 2026 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 13 May 2021. In that decision, the Board upheld the decision of the Director of Immigration (“Director”) dated 9 January 2019 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of India born in 1991 and his claim was made on the basis that if he returned to India, the father (Ram Yadav) of his girlfriend (Radhika) would harm or kill him due to their romantic relationship as they were of different caste and religion. 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 [11] – [29] of the Form CALL-1.

Appeal to this Court

3.  On 7 May 2026, the applicant filed his Notice of Appeal against the Judge’s decision. His stated grounds of appeal were, essentially, that the Judge did not scrutinize his claim properly, that the Judge and the Board rejected his claim despite the severity of his problem in his home country, and that he would be killed by his enemies if he returned to his country.

4.  The applicant has lodged skeleton arguments in which he stated that the Judge’s decision was unreasonable and irrational, that the Judge failed to find procedural unfairness where the Director failed to give reasons to justify its decision, that the Judge reviewed the matter lightly, that the Judge did not analyze his claim properly, that the Judge did not accept his claims as it had been refused by the Board and the Director, that the Board did not allow sufficient opportunity for the applicant to arrange relevant evidence, that the Director relied on sources of news which were not officially recognized or were simply hearsay, that the Board failed to make a finding on whether there was a consistent pattern of gross and mass violation of human rights in his home country, and that the Board failed to assess whether state protection existed in his home country. He further stated that he would be killed if he returned to his home country and that his enemies were still looking for him.

5.  At the hearing, the applicant had nothing further to add.

Discussion

6.  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.

7.  In the present case, the Board found that there was no real risk of harm upon refoulement as alleged, because the conflict was purely a private and personal matter with no state involvement, the alleged ill-treatment did not attain a minimum level of severity, there was no strong evidence to demonstrate that the police would refuse to assist him, and internal relocation to Delhi and Mumbai would be viable options 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 show any reasonably arguable public law error in relation to the Board’s decision.

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. We are not satisfied that there is any error in the Judge’s decision.

9.  The applicant’s appeal is accordingly dismissed.