THAPA DEEPAK AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 344/2026, [2026] HKCA 1044

On Appeal From [2026] HKCFI 1561

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 344 OF 2026

(ON APPEAL FROM HCAL NO 1436 OF 2025)

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J U D G M E N T

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Hon Cheng J (giving the Judgment of the Court):

Introduction

1.  This is the Applicants’ appeal against the decision of DHCJ KW Lung (“the Judge”) dated 25 March 2026 (“the Decision”) 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 17 June 2025 (“the Board’s Decision”).

Background

2.  The Applicants are nationals of India. On 23 September 2024, the Applicants lodged a non-refoulement claim on the basis that, if refouled, they would be harmed or killed by Raju Pal and his people from Bharatiya Janata Party because they were supporters of its rival political party, the Indian National Congress. The Applicants’ claim was rejected by the Director of Immigration (“the Director”) on 10 April 2025, and the appeal against the Director’s decision was rejected by the Board on 17 June 2025. Details of the Applicants’ claim and the Board’s reasons for rejecting the Applicants’ appeal can be found in the Board’s Decision, the hyperlink to which can be found in the Form CALL-1 dated 25 March 2026.

3.  The Board found that (1) there was reasonable state protection available to the Applicants, (2) the Applicants failed to establish that they had suffered ill treatment, either physical or mental, (3) the Applicants failed to establish that they had a well-founded fear of persecution.

4.  The Applicants’ application for leave to apply for judicial review was refused by the Judge on 25 March 2026. Details of the Judge’s reasons for refusing to grant leave can be found in the Form CALL-1.  The Judge noted the Board’s findings, and the fact the Applicants had not raised any specific ground to challenge the Board’s Decision, and concluded that the Applicants failed to show any realistic prospect of success in the proposed application for judicial review.

Grounds of Appeal

5.  In the Notice of Appeal filed on 2 April 2026, the Applicants stated that:

“I am disagree with the decision maker authorities. The decision made by the Director of Immigration, As well as the decision made by the Adjudicator of the Torture Claim Appeal Board. So we do not think our case determined fairly.” (sic)

6.  The Applicants failed to comply with the directions given by the Registrar of Civil Appeals to lodge written submissions in support of the appeal on or before 19 May 2026. Accordingly, the Applicants are deemed to have waived the right to have an oral hearing of the appeal and to have elected to have the appeal disposed of on paper. Having considered the documents before us, we consider that it is appropriate to deal with the Applicants’ appeal on paper without an oral hearing.

Legal Principles

7.  In an appeal 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 of Appeal’s role is not to examine the Board’s decision afresh as if it were a fresh application for judicial review (see Nupur Mst v Director of Immigration [2018] HKCA 524, at [14(6)]).

8.  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.  

Discussion and Disposition

9.  The Board found that the Applicants failed to establish their claims of ill treatment and their fears of being harmed. These were findings which the Board was entitled to make on the evidence placed before it. Accordingly, the Judge concluded that the Applicants failed to show any realistic prospect of success in the proposed application for judicial review. We do not see any reasonably arguable basis for challenging this. The matters raised in the Applicants’ Notice of Appeal against the Decision are all general allegations without particulars. They do not identify any error in the Decision or engage with the Judge’s reasoning. They do not constitute any valid grounds of appeal against the Decision.

10.  The Applicants’ appeal has no merit, and is dismissed with no order as to costs.