DHAN BAHADUR MAGAR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 595/2025, [2026] HKCA 159

On appeal from [2025] HKCFI 3153

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 595 OF 2025

(ON APPEAL FROM HCAL NO 1510 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 decision of Deputy High Court Judge (Non-refoulement Claims) Val Chow (“the Judge”) dated 1 August 2025,[1] refusing his application for leave to apply for judicial review against the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board”) dated 5 June 2020 (the “Board’s Decision”) whereby the Board dismissed his appeal against the decision of the Director of Immigration (the “Director”) dated 26 September 2018 (the “Director’s Decision”).

The applicant’s claim and the Judge’s decision

2.  The applicant is a national of Nepal. In his supplementary claim form filed with the Immigration Department dated 26 July 2018, he alleged that, if refouled, he would be harmed or killed by Maoist groups and the Nepali government. The applicant’s non-refoulement claim was rejected by the Director, and his appeal against it was rejected by the Board on 5 June 2020. Details of the applicant’s claim and the Board’s reasons for rejecting the applicant’s appeal can be found in the Board’s Decision, the hyperlink to which can be found in the Form CALL-1.

3.  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.

The appeal

4.  By a Notice of Appeal filed on 11 August 2025, the applicant sought to appeal the Judge’s decision to this court. For the grounds of appeal, the applicant stated that “I have prepared this application without legal representation. Therefore I reserve the right to amend or supplement this Notice of Appeal in due course.”, but without providing any grounds of appeal.

5.  The appeal was scheduled to be heard on 28 January 2026. The applicant attended the hearing in person with the assistance of a Nepali interpreter and had nothing to add to his written submissions.

6.  In his skeleton submissions lodged on 18 December 2025, he briefly repeated his claim and argued that:

“The Judge of Court of First Instance did not fairly assess my case.

In paragraph 48 of my Appeal Bundle, they said there is no real risk of torture upon his return to Nepal. This was incorrect, because I firmly believe that the initial decisions made by the Torture Claim Board has been made unfair decision without proper consideration of the genuine risks I face if I am forced to return to Nepal.

My fear of persecution and harm is still very real. The Maoist groups, which threatened me in the past, remain active in my village area. These groups have a strong network throughout Nepal, making it easy for them to locate me regardless of where I stay in the country. Given their influence and presence, I am terrified that I will be targeted and harmed if I return. The decision overlooked the ongoing threat from Maoist groups in Nepal. Threats from active armed groups are relevant to assessing the risk of persecution, especially if those groups continue to operate and threaten individuals like me.

In paragraph 27 of my Appeal Bundle, I disagree with the point that Nepal is not similar to Somalia, but this comparison may be inappropriate. Both countries have experienced significant instability. Thus there has been unfair comparison of the conditions of two different regions.

In paragraph 47 of my Appeal Bundle, they failed to consider the threat I faced form non-state actors. The Maoist insurgency was a significant threat to my safety, and I was targeted by them while I was in Nepal. The fact that I was not targeted by the government does not negate the fact that I was in a high-risk situation.

I have been living in Hong Kong for over 21 years, with asylum status, and more than half of my life has been spent here. I have invested my youth and my entire life in this city, and I have been experiencing ongoing mental and emotional distress due to this situation.

I kindly urge the Torture Claim Board to thoroughly review my case again, taking into account the current active threats in Nepal, my long residence in Hong Kong, and the mental anguish I am enduring. My safety, life and dignity depend on a fair reconsideration of my circumstances.”

Our reasons for decision

7.  The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524, at §14. In particular, 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 is a fresh application for judicial review (see Nupur Mst, at §14(6)).

8.  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 is an error of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022.

9.  With regards to the applicant’s complaints in his written submissions:

(1)  Paragraph 27 (and 28 and 31) of the Board’s Decision pointed out that the applicant would have a low risk of harm upon his return to Nepal as the political situation was relatively more stable than Somalia. Apart from stating that the comparison between Nepal and Somalia by the Board was unfair, the applicant did not provide any further elaboration as to how it was so.

(2)  Paragraph 47 and 48 of the Board’s Decision made the observation that there was no real risk of torture upon his return to Nepal.

The Judge has already considered the Board’s Decision. He found no error of law or procedural unfairness or irrationality in the decision of the Board.

10.  An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge. It is incumbent on the applicant to point out the Judge's errors with sufficient particulars and specifics. Having considered the applicant’s written submission, we are of the view that he 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.

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