RE SHRESTHA RAJ KUMAR

CACV 151/2025, [2026] HKCA 7

On appeal from [2025] HKCFI 1054

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 151 OF 2025

(ON APPEAL FROM HCAL 2447/2019)

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J U D G M E N T

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

1.  This is an appeal against the decision of Deputy High Court Judge To (“the Judge”) given on 18 March 2025[1] (“the Leave Decision”) refusing to grant leave for the applicant to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”) dated 15 August 2019 (“the Board’s Decision”) dismissing the applicant’s appeal against the decision of the Director of Immigration dated 6 August 2018 rejecting the applicant’s non-refoulement claim.

2.  The applicant’s background, the basis of his claim and the Board’s reasons in reaching the Board’s Decision have been set out by the Judge in the Leave Decision at [2]-[15], which will not be repeated.

3.  After considering the documents filed by the applicant and his oral submissions at the hearing of the leave application, the Judge dismissed the application for the reasons stated at [17]-[20] of the Leave Decision.

Appeal to this court

4.  By a Notice of Appeal dated 24 March 2025, the applicant claimed that he disagreed with the Leave Decision and that the Judge did not consider his claim properly.  He also claimed that he still had “severe problem in [his] home country”. 

5.  By written submissions dated 13 November 2025, the applicant further asserted, in essence, that the Judge was generally wrong for having not applied the principle of irrationality or procedural unfairness, the claims were not analysed properly, and that if refouled back to his home country, he would face a deadly risk. 

6.  We heard the appeal on 16 December 2025, at which the applicant appeared in person.  At the hearing, the applicant asked this court to reconsider the evidence which had already been placed before and considered by the Board and in the hearing below.

Discussion

7.  As this court has often stated, an appeal to the Court of Appeal is not a fresh application for judicial review.  It is necessary to identify some error on the part of the judge that would justify this court in intervening: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  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.  An appeal is not the occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but were not raised before the judge.  In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and the court will only reverse that decision if an appellant could demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

8.  The applicant has failed to identify any error on the part of the Judge and thus failed to raise any viable ground of appeal. The points advanced by the applicant were bare assertions unsupported by particulars or evidence.  General assertions of fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6].

9.  In the present case, the Board found that the applicant failed to establish the factual basis to support his claims for protection and concluded that the applicant failed on all applicable grounds: see the Leave Decision, [10]-[15].  These were factual findings open to the Board on the evidence, and were sufficiently canvassed and considered by the Judge at the Leave Decision, [19].  We see no basis to interfere.

10.  The applicant has failed to demonstrate how the Board had acted unlawfully or procedurally unfairly in reaching its Decision, or how such Decision could be said to be Wednesbury unreasonable.

11.  As we have noted, the applicant advanced no viable grounds of appeal against the Judge’s decision.  There is therefore no merit in the appeal and we dismiss the appeal accordingly.