MOKTAN TAMANG TINA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 159/2026, [2026] HKCA 947

On Appeal From [2026] HKCFI 225

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 159 OF 2026

(ON APPEAL FROM HCAL NO 2479 OF 2020)

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge (Non-Refoulement Claims) Vincent Lung (“Judge”) on 12 February 2026 refusing to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”) dated 27 November 2020.  In that decision, the Board upheld the decision of the Director of Immigration (“Director”) dated 30 November 2018 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of India born in 1983 and her claim was made on the basis that if she returned to India, she would be harmed or killed by Sandeep Lama, a person affiliated with the Gorkha National Liberation Front party, due to her refusal to rejoin their political party.   In addition, she feared people from a rival political party due to Sandeep’s false accusation of her involvement in a murder and she also feared being arrested by the Indian police arising from the false accusation.  Details of the applicant’s background, the basis of her claim and arguments advanced before the Board as well as the Board’s reasons for rejecting her appeal are all set out in the Board’s decision: see [4] 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 refusing the application: see [8] – [12] of the Form CALL-1.

Appeal to this Court

3.  On 24 February 2026, the applicant filed her Notice of Appeal against the Judge’s decision.  Her stated grounds of appeal were, essentially, that she had limited opportunities to present her case; that she lacked legal and language assistance in her case; that the Judge failed to consider her case with anxious scrutiny; that the Judge failed to consider the Board’s reasoning and simply adopted the Board’s decision; that the Judge erred in finding internal relocation viable for the applicant as a victim of sexual violence; that the Judge erred in finding that no BOR2, BOR3 and torture risks arise; that the Board and the Judge failed to carefully consider if the authorities would protect her; that the Board failed to consider state acquiescence; that the Board and the Judge viewed the applicant’s case in isolated parts rather than cumulatively; and that the Judge failed to recognize that the issues raised amounted to a reasonably arguable case.

4.  The applicant has lodged skeleton submissions in which she stated that the Board erred in law or acted irrationally in finding that the abuse did not reach the required level of severity, that there was no real future risk, that state protection was available, that the case was only a private dispute, that torture and BOR3 risks were not made out, and that internal relocation was reasonably available.

5.  At the hearing, the applicant stated that she has a daughter in Hong Kong and that her application for a dependant visa is still processing.

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 ill-treatment the applicant had received did not attain the minimum level of severity on the evidence as she never sought medical treatment; reasonable state protection would be available; there was no state involvement and she could depart India through proper immigration channels; and internal relocation to New Delhi or Mumbai would be viable 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.  As to the complaint about the lack of legal and language assistance, it has been repeatedly stated by the Court of Appeal 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 nor does the high standard of fairness required by law entail interpretation service being made available to an applicant at all times as he or she 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].  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 herself conversant with the English language or she had access to language assistance of her own if she found it necessary.  Further, we note that the applicant was legally represented in the initial preparation of her case by the completion of the non-refoulement claim form and in the screening interview with the Director, which formed the basis of her present claim.  Thus, we do not find the non-availability of legal representation in the processes before the court to amount to any procedural unfairness.

9.  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.

10.  The applicant’s appeal is accordingly dismissed.

11.  This decision concerns of course only the applicant’s claim for non-refoulement protection, and does not in any way deal with her application to the Director for permission to stay in Hong Kong as the spouse of a Hong Kong permanent resident.