MD KAMAL UDDIN v. TORTURE CLAIMS APPEAL BOARD

CACV 948/2025, [2026] HKCA 73

On Appeal From [2025] HKCFI 5059

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 948 OF 2025

(ON APPEAL FROM HCAL NO 3554 OF 2019)

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J U D G M E N T

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Hon Eugene Fung 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 23 October 2025 dismissing the 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 12 March 2019. In that decision, the Board upheld the decision of the Director of Immigration (“Director”) dated 25 June 2018 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of India born in 1985 and his claim was made on the basis that if he returned to India, his creditor (Imran) would harm or kill him due to his inability to repay the loan. Details of the applicant’s background, the basis of his claim and the arguments advanced before the Board as well as the Board’s reasons for rejecting his appeal have all been 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 for leave to apply for judicial review and his reasons for refusing leave: see [18] – [32] of the Form CALL-1. We shall not repeat them here.

Appeal to this Court

3.  On 30 October 2025, the applicant filed his Notice of Appeal against the Judge’s decision. His stated ground of appeal was, essentially, that the court disregarded his dangerous situation.

4.  As the applicant did not lodge any written submissions, 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

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, because it found the creditor to be no more than a mobile trader like the applicant and that the applicant’s claim was based on bare and flimsy assertions. 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.  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 agree with the Judge that the explanation given by the applicant for the delay in applying for leave for judicial review was not satisfactory. We are not satisfied that there is any error in the Judge’s decision.

8.  The applicant’s appeal is accordingly dismissed.