PUN TUK BAHADUR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 434/2025, [2026] HKCA 177

On appeal from [2025] HKCFI 2496

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 434 OF 2025

(ON APPEAL FROM HCAL NO 88 OF 2020)

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BETWEEN

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JUDGMENT

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The Court:

Introduction

1.  This is the applicant’s appeal against the order of Deputy High Court Judge Michael Wong (“the Judge”) dated 17 June 2025 (“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 13 December 2019 (“the Board’s Decision”).

Background

2.  The applicant is a national of Nepal. On 10, 16, 19 March 2016, he lodged a non-refoulement claim on the basis that, if refouled, he would be harmed or killed by people of the United Marxist Leninist Party because he was an active member of the Nepali Congress Party, an opposition party. Details of the applicant’s claim have been summarized in the Board’s Decision, the hyperlink to which can be found in the CALL-1 Form.

3.  By a Notice of Decision dated 21 September 2018 (“the Director’s Decision”), the Director of Immigration (“the Director”) rejected the Applicant’s non-refoulement claim on all applicable grounds, namely: BOR 2 risk[1], BOR 3 risk[2], persecution risk[3], and risk of torture[4].

4.  The applicant appealed the Director’s Decision to the Board. The Board dismissed the Applicant’s appeal, and confirmed the Director’s Decision. Details of the Board’s reasoning and findings can be found in the Board’s Decision.

The Judge’s decision

5.  On 9 January 2020, the applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision. In the Form 86, he alleged that the decisions of the Director and the Board were not reasonable and fair, that the Director has failed to give proper weightage to the presence of state acquiescence in his case, that the Board acted unreasonably and was procedurally unfair by placing too much reliance on country of origin information, that the Director has failed to consider his argument, that the Director had failed to attain the high standard of fairness, that the Board was procedurally improper and/or unfair when assessing whether to accept his explanations, and that the decision of the Board dismissing his appeal was irrational.

6.  In refusing to grant leave to apply for judicial review, the Judge observed that the grounds advanced by the applicant were like a template that has been used by many applicants in similar applications without any regard to their own situations. He nevertheless proceeded to deal with the substance of the applicant’s case. He held that for those grounds directed at the Director, they could not be used to challenge the Board’s Decision, whereas for those grounds directed at the Board, they were without explanations or particulars. In particular, he held that the Board was entitled to make its evaluation based on the available evidence, and that there was no error of law, procedural unfairness or irrationality found in the Board’s Decision. Details of the Judge’s reasoning and findings can be found in the CALL-1 Form.

Grounds of appeal

7.  In his Notice of Appeal filed on 24 June 2025, the applicant states that he does not agree with the decision of the Judge who did not scrutinise his claim properly, and repeats his claimed fear of harm.

8.  The applicant has failed to lodge written submissions in support of his appeal in accordance with the directions given by the Registrar of Civil Appeals on 1 December 2025. Accordingly, he is deemed to have waived the right to have an oral hearing of his appeal and elected to have his appeal disposed of on paper. Having considered the documents before us, we consider that it is appropriate to deal with the Applicant’s appeal on paper without an oral hearing.

Legal principles

9.  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)).

10.  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 & dispostion

11.  The matters raised in the applicant’s Notice of Appeal are mere general and bald assertions. They do not constitute any valid grounds of appeal against the Judge’s decision. The applicant has failed to identify or show any error in the Judge’s decision refusing to grant leave to apply for judicial review, or raise any viable ground of appeal against the Order. There is also no error of law or procedural unfairness or irrationality in the decision of the Board in the present case.

12.  The applicant’s appeal has no merit, and is dismissed.