KUNDRA GOURAV v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 566/2025, [2026] HKCA 180

On appeal from [2025] HKCFI 2937

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 566 OF 2025

(ON APPEAL FROM HCAL NO 984 OF 2020)

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BETWEEN

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JUDGMENT

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The Court:

Introduction

1.  This is the applicant’s appeal against the order of Deputy High Court Judge Levy (“the Judge”) dated 17 July 2025 (“the Order”) refusing to grant leave to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 6 May 2020 (“the Board’s Decision”).

Background

2.  The applicant is a national of India. On 3 August 2016, he lodged a non-refoulement claim on the basis that, if refouled, he would be harmed or killed by the workers of the company he worked after he had filed a case against them for suspected damage to the expensive bottle-filling machine that the company just bought from Germany. Details of the applicant’s claim have been summarized in the Board’s Decision, the hyperlink to which can be found in the CALL-1 Form.

3.  By a Notice of Decision dated 23 April 2018 (“the Director’s Decision”), the Director of Immigration (“the Director”) rejected the Applicant’s non-refoulement claim on all applicable grounds, namely: BOR 2 risk[1], BOR 3 risk[2], persecution risk[3], and risk of torture[4].

4.  The applicant appealed the Director’s Decision to the Board. The Board dismissed the applicant’s appeal, and confirmed the Director’s Decision. Details of the Board’s reasoning and findings can be found in the Board’s Decision.

The Judge’s decision

5.  On 14 May 2020, the applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision. He did not advance any grounds for judicial review in the Form 86. In the supporting affirmation of the same date, the applicant stated that it was procedurally unfair that the Board’s Decision was written in English and that it has never been read or translated to him in his first language, and that the Board’s Decision was unreasonable and unacceptable, as the Board failed to take into account all the relevant facts into consideration and he only made on baseless assumptions.

6.  The Judge gave the decision refusing to grant leave to apply for judicial review for the reasons that the Board did assess the applicant’s case as claimed, and in particular, the Board was entitled to come to its own conclusion based on the available information before it. The Judge held that there was no error of law, procedural unfairness or irrationality found in the Board’s Decision, and that the applicant had also failed to demonstrate any of the same. Details of the Judge’s reasoning and findings can be found in the CALL-1 Form.

Grounds of appeal

7.  In the Notice of Appeal filed on 31 July 2025, the applicant states that he was not provided with language and legal assistance, that the Board failed to discuss state protection and internal relocation, that the Board dismissed his evidence as hearsay, that the Judge failed to acknowledge his language inability, that the Judge did not address the specific circumstances and challenges presented by him, that the Judge should have ensure that the process was procedurally fair, especially for a non-represented litigant.

8.  The applicant has failed to lodge written submissions in support of his appeal in accordance with the directions given by the Registrar of Civil Appeals on 2 December 2025. Accordingly, he is deemed to have waived the right to have an oral hearing of his appeal and elected to have his appeal disposed of on paper. Having considered the documents before us, we consider that it is appropriate to deal with the applicant’s appeal on paper without an oral hearing.

Legal principles

9.  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: Nupur Mst v Director of Immigration [2018] HKCA 524, at §14(6).

10.  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.

Discussion & disposition

11.  As to the complaint about the lack of legal and language assistance, the Court of Appeal has repeatedly stated that as a matter of law, it is not the case that a non-refoulement claimant is entitled to free legal representation at all stages of the process, and that the high standard of fairness required by law does not entail an interpretation service being made available to an applicant at all times as he desires: Re Zunariyah [2018] HKCA 14 at [18]; Re Zahid Abbas [2018] HKCA 15 at [11] and Re Tariq Farhan [2018] HKCA 17 at [11]; Re Gurnishan Singh [2018] HKCA 704 at [11] and [13].

12.  Furthermore, we note that all the court documents filed in this appeal and in the court below were in English. It is thus clear that either the applicant was himself conversant with the English language or he had access to language assistance of his own if he found it necessary. We also note that the applicant was legally represented in the initial preparation of his case in the completion of the non-refoulement claim form and screening interview with the Director, which formed the basis of his present claim. Thus, we do not find the non-availability of legal representation or language assistance in the processes before the court to amount to any procedural unfairness.

13.  As to the complaint about the failure to discuss state protection and internal relocation, the Board already rejected the applicant’s centrepiece of the evidence that formed the basis of his fear, it was therefore unnecessary for us to do so.

14.  As the complaint in relation to hearsay, it was the applicant’s own account that his evidence relating to what he claimed happened after he had been discharged from hospital and gone to Amritsar was entirely based on what he was told by others. Hence, the Board was correct to hold such evidence as hearsay and to treat it as such.[5]

15.  The other matters raised in the applicant’s Notice of Appeal are mere general and bald assertions regarding the decision of the Judge without explanations or particulars. They do not constitute any valid grounds of appeal against the Judge’s decision.

16.  In conclusion, the applicant has failed to identify or show any error in the Judge’s decision refusing to grant leave to apply for judicial review, or raise any viable ground of appeal against the Order. There is also no error of law or procedural unfairness or irrationality in the decision of the Board in the present case. As the applicant’s appeal has no merit, we dismiss it accordingly.