BISHWOKARMA GAKUL v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 571/2024, [2025] HKCA 490

On Appeal From [2024] HKCFI 3391

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 571 OF 2024

(ON APPEAL FROM HCAL NO 2258 OF 2019)

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J U D G M E N T

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Hon Chow JA (giving the Judgment of the Court):

1.  This is the Applicant’s appeal against the order of Deputy High Court Judge K W Lung (“the Judge”) dated 27 December 2024 (“the Order”) refusing to grant leave to the Applicant to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 26 July 2019, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 16 May 2019.

BACKGROUND

2.  The Applicant is a national of Nepal. He entered Hong Kong illegally on 20 January 2019, and was arrested by the police on the same date. By way of written representations dated 14 February 2019 and 20 February 2019, he lodged a non-refoulement claim on the basis that, if refouled, he would be harmed or killed by his brother-in-law (Cha Bahadur Ghimire) because, after separation with his wife, he refused to divorce her. He also claimed that he would face caste discrimination upon refoulement because his family belonged to a lower caste of the community. Details of the Applicant’s claim have been summarised by the Judge at §§4-6 of his decision dated 27 December 2024.

3.  By a Notice of Decision dated 16 May 2019 (“the Director’s Decision”), the Director dismissed the Applicant’s non-refoulement claim with reference to all applicable risks: 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. On 26 July 2019, the Board dismissed the Applicant’s appeal, and confirmed the Director’s Decision (“the Board’s Decision”). The Board’s reasons for its decision were summarised by the Judge at §§11 and 12 of his decision, as follows:

“[11] The Board found the [Applicant’s] evidence about the claimed threat from his brother-in-law not credible nor reliable [22]-[28]. His claim about caste discrimination was also unfounded and unsupported [29]. In any event, the [Applicant’s] claimed fear from his brother-in-law would unlikely materialise as there was no evidence showing that he had any real intention to locate and to seriously harm the applicant [31]-[32]. Furthermore, internal relocation would also be available [33]-[36].

[12] Based on such findings and given that the matter concerned was a private dispute with no official involvement, the Board rejected the applicant’s claim on Torture risk, Persecution risk, BOR 2 and BOR 3 risk [37]-[54]. The [Applicant’s] appeal was therefore dismissed and the Director’s decision was confirmed.”

THE JUDGE’S DECISION

5.  On 7 August 2019, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision. No ground for seeking relief was given in the Form 86. In his supporting affirmation, the Applicant merely stated, without giving any particulars, that the Board’s Decision was unfair and unreasonable.

6.  On 27 December 2024, the Judge refused to grant leave to apply for judicial review for the following reasons:

“[15] The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the [Applicant’s] appeal. The Court will not usurp the fact-finding power vested in the Director and the Board…

[16] The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the [Applicant] said that he did not mean the Board was wrong, but he wanted the Court to review it.

…

[18] The Board, for the reasons given above, found that the [Applicant’s] claimed risks were unfounded.

[19] The [Applicant] has not raised any valid ground to challenge the Board’s Decision.

[20] There is no reason that the Court should interfere with the Board’s finding of the facts or its views upon the evidence before it.

[21] The [Applicant] fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.”

THIS APPEAL

7.  In his Notice of Appeal filed on 30 December 2024, the Applicant stated the following:

“I am disagree with the decision maker authorities…They were rejected all my evidence. They were relied on some web news which officially not recognized.” [sic]

8.  The Applicant has failed to lodge any written submissions in support of his appeal contrary to the directions given by the Registrar of Civil Appeals on 3 April 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.

DISCUSSION

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’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)).

10.  Further, 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. No such error of law or procedural unfairness or irrationality in the decision of the Board is shown in the present case.

11.  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.

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