MD IQBAL v. TORTURE CLAIMS APPEAL BOARD

CACV 767/2025, [2026] HKCA 1496

On appeal from [2025] HKCFI 4083

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 767 OF 2025

(ON APPEAL FROM HCAL NO 3421 OF 2019)

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JUDGMENT

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The Court:

1.  This is the Applicant’s appeal against the order of Deputy High Court Judge Michael Wong (“the Judge”) dated 9 September 2025 (“the Order”) refusing to grant leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“the Board”) dated 18 October 2019 (“the Board’s Decision”) whereby the Board confirmed the Applicant’s withdrawal of his appeal against the decision of the Director of Immigration (“the Director”) dated 11 May 2018 (“the Director’s Decision”).  Subsequently, the Applicant sought to re-open his appeal.  Before the Board could reply, he filed his Form 86 on 18 November 2019.

2.  The Applicant is a national of India.  He lodged a non-refoulement claim with the Immigration Department on the basis that, if refouled, he would be killed by his creditor over an unpaid debt.  The Applicant’s non-refoulement claim was rejected by the Director, and his appeal against it was subsequently withdrawn, which was confirmed in the Board’s Decision.  Details of the Applicant’s claim, the procedural history and the Board’s confirmation of his such withdrawal can be found in the Form CALL-1 dated 9 September 2025 (“the Form CALL-1”).

3.  The Applicant’s application for leave to apply for judicial review was refused by the Judge and details of the Judge’s reasons for refusing to grant leave can be found in the Form CALL-1.

4.  By a Notice of Appeal filed on 19 September 2025, the Applicant sought to appeal the Judge’s decision to this court. For the grounds of appeal, the applicant stated that (sic):  

“I do not agree to the decision of the court of First Instance. This decision is unfair and it make me liable to go back to my home country where my life is not safe.”

5.  The Applicant lodged his skeleton argument on 10 July 2026 together with what appears to be a copy of a marriage certificate showing that in August 2024 he was married to a Chinese woman in Hong Kong but without explaining its relevance. In the skeleton argument, he reiterated and expanded on his claim that he would be tortured or killed by his enemies. He asserted inter alia that :-

a.  the Judge failed to apply the principles of rationality, procedural fairness and high standards of fairness, and also failed to analyse his claims properly; further the Judge’s decision was unreasonable;

b.  the Board failed to give him sufficient chance to arrange for the relevant evidence and failed to evaluate and find whether a consistent pattern of gross and mass violation of human rights existed 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.  The appeal was heard on 18 August 2026.  The Applicant attended the hearing in person with the assistance of a Hindi interpreter.  He told us that he was married in Hong Kong and he was processing his ID card.  He just needed some time.  

7.  In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal 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.  The Court of Appeal’s role is not to examine the Board’s decision afresh as if it was a fresh application for judicial review (see Nupur Mst v Director of Immigration [2018] HKCA 524, at §14(6)).

8.  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 Board and the Director.  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: Re Kartini [2019] HKCA 1022.

9.  Even if the Applicant asserts that he is married to a permanent resident of Hong Kong, this does not detract from the fact that he does not have any right to enter or to remain in Hong Kong.  It is well-established that a family member (who has a right of permanent residence in Hong Kong) of a person (who has no right to remain in Hong Kong), the latter cannot rely on the family member’s own rights under the Bill of Rights or the Basic Law to require the Director to grant a right to remain in Hong Kong to him or her: Re Purisima Aida P [2022] HKCA 637 at [15]. 

10.  In the present case, the Judge found no error of law, procedural unfairness or irrationality in the Board’s Decision.  In our view, the matters set out in the Applicant’s Notice of Appeal and skeleton argument are bare assertions unsupported by proper particulars.  They do not constitute any viable grounds of appeal.  We see no basis to interfere with the Judge’s decision. 

11.  The Applicant’s appeal has no merit, and is dismissed.