MAHARJAN KRISHNA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 679/2025, [2026] HKCA 541

On appeal from [2025] HKCFI 3675

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 679 OF 2025

(ON APPEAL FROM HCAL NO 479 OF 2020)

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J U D G M E N T

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The Court:

Introduction

1.  This is the applicant’s appeal against the order of Deputy High Court Judge (Non-refoulement Claims) YW Hew (“the Judge”) dated 22 August 2025[1](“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 8 November 2019 (“the Board’s 2^nd Decision”) whereby the Board dismissed his appeal against the decision of the Director of Immigration (the “Director”) dated 26 April 2017 (“the Director’s 2^nd Decision”) and rejecting his non‑refoulement protection claim regarding his right to life under Article 2 (“BOR 2 Risk”).  

2.  As noted by the Judge at paragraph 4 of the Form CALL-1, the Director has rejected the applicant’s claim under BOR 3, torture risk and persecution risk in his decision dated 12 February 2016, (“the 1^st Director’s Decision”) and the applicant’s appeal against it was rejected by a Board’s decision dated 15 December 2016 (“the 1^st Board’s Decision”). However, these were not challenged in the applicant’s first instance application.

BACKGROUND

3.  The applicant is a national of Nepal. He lodged his non-refoulement claim with the Immigration Department on the basis that on the basis that, if refouled, he would be harmed or killed by his family members and his wife’s family due to inter-caste marriage as there was disapproval of his marriage to his wife. The applicant’s non-refoulement claim was rejected by the Director’s 1^st Decision and the Director’s 2^nd Decision and his appeal against them were rejected by the Board’s 1^st Decision and the Board’s 2^nd Decision. Details of the applicant’s claim and the Board’s reasons for rejecting the applicant’s appeal can be found in the Board’s two decisions, the hyperlinks to which can be found in the Form CALL-1.   

4.  The applicant’s application for leave to apply for judicial review was refused by the Judge and details of the Judge’s reasons for refusing to grant leave can be found in the Form CALL-1.     

GROUND OF APPEAL

5.  By a notice of appeal filed on 3 September 2025, the applicant sought to appeal the Judge’s decision to this court. For the grounds of appeal, the applicant stated that (sic) “The Judge at First Instance did not assess his children’s, wife and his case carefully”.

6.  In the applicant’s skeleton submissions lodged on 23 December 2025, he states that :-

“I write this skeleton submission in support of my case CACV 679/2025 (on appeal from HCAL 479/2020).

The Torture Claims Appeal Board did not consider the situation of Nepal and my claim reasonably.

They did not consider fairly that Birju, my wife’s brother, who is a part of the Maoist group in Nepal, a ground that still holds significant influence within the Nepalese community continues to pose a threat to my and my family’s safety especially since Birju refuses to accept my marriage to his sister Birjana.

As for the point of relocating to other parts of Nepal, even if Nepal is very big, the community often knows each other and even if we live in different cities, the news of out arrival or whereabouts can be shared to Shankar Party, my family or my wife’s family. Also, the issue of inter-caste marriage is deeply frowned upon on Nepal and it is not accepted so it would be dangerous for myself along with my family to return to Nepal.

I kindly urge the Torture Claims Appeal Board to thoroughly review my case again, as my fear of threats and harm is still very real.”

7.  At the hearing on 24 February 2026, the applicant requested the assistance of a Nepali interpreter. The case was adjourned to 11 March 2026. At the adjourned hearing, the applicant added that he is married with a non-refoulement claimant and have a family here.

DISCUSSION & DISPOSITION

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

9.  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.

10.  In the present case, the Judge found no error of law or procedural unfairness or irrationality in the decision of the Board.

11.  We note that the applicant’s wife and children were never named as co-applicants or dependents in his non-refoulement claim process before the Director or the Board. It is improper to the applicant to raise this issue at this stage.

12.  After reviewing the papers before us, we note that under Part J of Section 1 of his Notice of Appeal/Petition form against the Director’s decision submitted to the Board on 25 February 2016, the applicant crossed out the names of his wife and daughter and the deletions were signed by him at the margin. Further, under paragraph 46 in the Board’s 1^st Decision, the Board noted that the applicant “expressed that he would like to bring his wife and young daughter back to Nepal because he is not able to work in Hong Kong”.

13.  In any event, it is incumbent on the applicant to point out the Judge's errors with sufficient particulars and specifics. In our view, the matters set out in the applicant’s notice of appeal and written and oral submissions failed to identify any error on the part of the Judge. They do not constitute any viable grounds of appeal and lack substance. We see no basis to interfere with the Judge’s decision.

14.  For the above reasons, the applicant’s appeal is devoid of merits. Accordingly, we dismiss the appeal.