RE KHAND THAKURI ALISHA

CACV 448/2024, [2025] HKCA 207

On Appeal From [2024] HKCFI 2631

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 448 OF 2024

(ON APPEAL FROM HCAL NO. 1645 OF 2019)

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JUDGMENT

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Hon H. Au-Yeung J (giving the Judgment of the Court) :

The appeal

1.  This is an appeal by the applicant against the decision of Deputy High Court Judge KW Lung (‘the Judge’) of 14 October 2024 in which he refused to grant leave to her to apply for judicial review.

Background

2.  The applicant is a national of Nepal.  She arrived in Hong Kong on 13 November 2015, and lodged a non-refoulement claim on 13 May 2016.

3.  The basis of the applicant’s claim was that she would be harmed or killed by her boyfriend’s family as well as her own family since they did not accept the relationship between the applicant and her boyfriend.

The Director’s Decision

4.  The Director of Immigration (‘the Director’) decided against the applicant’s non-refoulement claim on 27 December 2018 (‘the Director’s 2018 Decision’).

The Board’s Decisions

5.  The applicant appealed/petitioned against the Director’s 2018 Decision to the Torture Claims Appeal Board (‘the Board’) on 9 January 2019. 

6.  By letter dated 8 March 2019, the applicant applied to the Board for withdrawal of her appeal/petition. Upon satisfaction that the applicant’s withdrawal application was freely sought, that she understood the consequences of the withdrawal, and that there was good reason for such withdrawal, the Board directed on 25 March 2019 that the applicant’s appeal/petition be withdrawn, and that the Director’s Decision be confirmed.

7.  On 17 April 2019, the applicant applied to the Board to re-open her claim, which was rejected on 3 May 2019 (‘the Board’s Decision’).

Decision of the Judge

8.  The applicant filed her Form 86 and supporting affirmation on 17 June 2019 containing various grounds of complaint against the Director / the Board. 

9.  The Judge took the view that the question for determination was whether the Board was correct to refuse the applicant’s application for re-opening her claim for the reason that she had withdrawn such a claim.

10.  Having taken into consideration section 37ZTA(2) of the Immigration Ordinance (Cap.115, Laws of Hong Kong), and Re Das Purnima Rani [2019] HKCA 669 at [41] – [42], it was held that the applicant had shown no realistic prospect of success in her intended application for judicial review.  The Judge also did not accept the applicant’s allegation that she did not have mental capacity to make the withdrawal application as she had produced no medical evidence in support of such an allegation.     

Grounds of appeal

11.  The applicant’s grounds of appeal may be summarised as follows[1]:

(1)   There was a lack of language and legal assistance: Grounds 2, 3, 5, 6, 7, 8 and 9;

(2)   The applicant was indeed mentally not fit when she withdrew the appeal even though she could not provide any evidence in support: Ground 4;

(3)   The procedure was unfair because there was no other avenue for appeal: Ground 7.

Our view

12.  In our view, the Judge was plainly right to state that the issue was whether the Board was correct to refuse the applicant’s application to re-open her withdrawn appeal.

13.  In this regard, the applicant had produced no medical evidence in support of her alleged mental state at the time of her application to withdraw the appeal before the Board.

14.  At the appeal hearing, the applicant handed up a memorandum prepared by a Dr Cheung dated 13 February 2025.  However, this document does not assist the applicant because it does not inform this Court of her mental condition back in March 2019 (i.e. when she withdrew her appeal).

15.  All other grounds of appeal have nothing to do with her unequivocal application to withdraw the said appeal.

16.  It is incumbent on the applicant to point out with sufficient particularity the errors allegedly committed by the Judge in assessing the Board’s Decision.  None of the arguments raised by the applicant shows the Judge has made such an error.  We therefore hold that the applicant’s appeal is without merits. 

17.  Accordingly, the appeal is dismissed.