RE TAMANG RAM BAHADUR

CACV 77/2026, [2026] HKCA 516

On appeal from [2026] HKCFI 216

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 77 OF 2026

(ON APPEAL FROM HCAL NO 547 OF 2021)

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J U D G M E N T

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Hon K Yeung J (giving the Judgment of the Court):

1.  This is the applicant’s appeal against the order of Deputy High Court Judge (Non-refoulement Claims) Jeffrey Chau (“the Judge”) dated 16 January 2026 ([2026] HKCFI 216) (“the Leave Decision”) dismissing his application for leave to apply for judicial review (“the Leave Application”) against the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 31 March 2021 (“the Board’s Decision”), whereby the Board dismissed his appeal against the decision of the Director of Immigration dated 17 September 2020, refusing his non‑refoulement claim.

2.  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 [3] of the Leave Decision. The Judge has set out his reasons for refusing the Leave Application: see [4] − [10] of the Leave Decision. We will not repeat the details herein.

3.  By the Notice of Appeal filed on 28 January 2026 (“NOA”), the applicant complains that there has been procedural unfairness as the Board failed to make reasonable accommodations for his circumstances including his language ability, illiteracy, poverty and lack of access to documents abroad.[1] He also complains that the Board’s Decision was unreasonable as the Board repeatedly drew harsh inferences from factors including the delay in filing his non-refoulement claim, his absence of formal documentary evidence and that considerable time had passed since his former wife’s departure and her subsequent demand, yet disregarded common-sense explanations.[2] He also complains that there was inadequate assessment of state protection and internal relocation in the specific factual context and that the Board set unreasonably high standard of evidence.[3] He further complains that the Board relied on selective and undisclosed materials to undermine his factual account.[4] Lastly, he complains that the Judge erred in dismissing his application without allowing proper consideration of whether there had been new facts or evidence that would warrant reconsideration of his case.[5]

4.  The applicant lodged written submissions on 2 March 2026 (“the Submissions”). In the Submissions, he claims that he does not understand Hong Kong legal procedures and that his English is limited.[6] He also complains that the Judge was too strict and focused too much on how he wrote his case in his Form 86, which resulted in inadequate consideration of his case and his arguments.[7] He again complains that the Board did not make “fair allowance” for his situation as to the provision of documentation and that the Board made unreasonable findings and used his delay and lack of documentary evidence against him.[8] He also complains that the Board’s Decision was procedurally unfair and he was not given a fair chance to respond in a meaningful way.[9]

5.  We heard the appeal on 16 March 2026. A Nepali interpreter was also present to provide language assistance. The applicant made no oral submission.

Discussion

6.  The relevant legal principles governing appeals in non‑refoulement cases are set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

7.  In particular, in appeals against refusal of leave to apply for judicial review in non-refoulement cases, 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. The Court’s role is not to examine the decision maker’s decision afresh as if it were a fresh application for judicial review: Nupur Mst at [14(6)].

8.  At the outset, the applicant’s allegations are new and not raised before the Judge. He fails to give any reason as to why these grounds are only raised on appeal and not in the court below. It is well established that this court will generally not entertain new arguments which are fact-and-evidence sensitive and have not been canvassed in the court below and for which leave has not been sought within time: Nupur Mst at [14] and Re Gurpreet Singh [2021] HKCA 1740 at [15]. The appeal can be dismissed on this basis alone.

9.  In any event, we see no merit in his complaints.

10.  First, nowhere in his NOA or Submissions did the applicant identify any error with specific particulars committed by the Judge. His assertions are mainly directed at the Board’s Decision and are in any event all general, bare and vague allegations unsupported by specific particulars or evidence. General and bare assertions of his fear if refouled do not constitute valid grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6]. Clearly, his assertions do not constitute viable grounds of appeal and must fail.

11.  Second, as to his complaints regarding the lack of language and legal assistance, we note that all of the court documents filed by the applicant in this appeal as well as before the Judge are in English. Clearly, the applicant is able to obtain assistance in English. The applicant was also provided with language assistance from interpreters during the hearings before the Board[10] and the Judge and no complaint was made by the applicant regarding the interpretation assistance during those hearings. It is also trite that as a matter of law, a non-refoulement claimant is not entitled to free legal representation at all stages of the process and that the high standard of fairness required by law does not entail interpretation service being made available to an applicant all the time as he desires: Cucun Fatimah v Torture Claims Appeal Board [2019] HKCA 1264 at [19] - [20].

12.  Third, as noted by the Judge at [8] of the Leave Decision, the Board had taken into account all the evidence available and given detailed reasons for his factual findings. In this respect, it must be open for the Board to find on the evidence that the applicant’s case did not stand up to scrutiny, in particular, when it is trite that the applicant had the burden to substantiate his case with evidence. We also agree with the Judge’s observations at [9] of the Leave Decision that any new evidence as alleged by the applicant is not relevant to the Board’s Decision. It must thus be open to the Judge to find on the materials before him that there was no error of law, procedural unfairness or irrationality in the Board’s Decision. The applicant already had ample opportunities to present his case before the Board and the Judge and there is no substance in his complaints. We see no basis to disturb the Leave Decision.

13.  For the above reasons, the applicant’s appeal against the Leave Decision has no merit and is dismissed.