RE RANA RITU

CACV 215/2026, [2026] HKCA 982

On Appeal From [2026] HKCFI 1041

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 215 OF 2026

(ON APPEAL FROM HCAL NO. 1112 OF 2021)

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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 applicant’s appeal against the decision of Deputy High Court Judge (Non-Refoulement Claims)  Jeffrey Chau (“the Judge”)  given on 2 March 2026[1] refusing her application for leave to apply for judicial review against the decision dated 30 April 2021 of the Torture Claims Appeal Board (“the Board”). The Board had dismissed her appeal against the decision dated 4 November 2020 of the Director of Immigration (“the Director”)  which rejected her non-refoulement claim having regard to the torture risk,[2] BOR 3 risk,[3] persecution risk[4] and BOR 2[5] risk grounds.

Background

2.  The applicant is a national of Nepal born in 1969.  She was brought up in a traditional Hindu family and followed Hindu customs.  She worked in Hong Kong as a foreign domestic helper from 2001 for about nine to ten years.  She applied for a change of status to “dependent” in June 2011 after her marriage to a Hong Kong resident on 29 May 2011 (this was her second marriage).  Her employment contract was prematurely terminated on 14 February 2012.  Her change of status application was refused on 28 August 2014.   She was required to leave Hong Kong on or before 11 September 2014 but she did not depart and overstayed.  In 2019, she raised a non-refoulement claim on the basis that if she returned to Nepal, she would be harmed or killed by the family of her late former husband who had died in 2007 (“the Family”)  as she had converted to Christianity while she was in Hong Kong.  Details of the applicant’s background, the basis of her claim and the arguments advanced before the Board as well as the Board’s reasons for rejecting her appeal were all set out in the Board’s decision.[6]  

3.  The Board primarily found that the applicant had failed to substantiate her claim on her own evidence which was vague, evasive and devoid of particulars. In particular, (1)  the applicant could not provide basic information such as the names and background of the Family members whom she claimed posed a threat due to her conversion to Christianity; (2)  she gave conflicting accounts as to when the Family discovered her conversion; first claiming that it was in 2007 (whilst at the same time saying that she only converted in 2015)  and then changing this to 2011 (but then also saying that nobody in her country had found out about her conversion until 2015 or 2016); (3)  at the hearing, she added new and serious allegations such as death threats from the Family which had never been mentioned at the screening stage.  The Board found that the applicant’s significant delay in lodging the non-refoulement claim had further damaged her credibility, noting that she had lived and worked in Hong Kong since 2001 but only claimed protection in late 2019, five years after she was required to leave Hong Kong.   As to the risk of harm assessment, the Board found that even assuming her claim was true, the risk of harm was assessed to be low: (1)  the Family had never actually harmed her in the past; (2)  she never sought protection from the Nepalese authorities; (3)  the claimed threat was a private, localised matter without any involvement of the Nepalese government. The Board considered there was no real chance of the applicant being harmed, and even if there were, state protection would be available to her.  

4.  In any event, the Board considered that internal relocation was viable given her years of work experience and on the basis of country-of-origin (“COI”)  information.  Consequently, the Board concluded that the applicant had failed to satisfy the threshold requirements entitling her to protection under any of the applicable grounds.

The Judge’s decision

5.  The applicant filed her Form 86 on 9 August 2021, which was late by a few days[7].  The Judge disregarded the fact of the delay as it was short and he considered that it had no impact on his decision.  The Judge considered the grounds raised by the applicant in support of her application for leave to apply for judicial review, and found that they were vague and generic assertions without engaging with the Board’s reasoning.  He dismissed the application for reasons set out in [4] to [10] of the Form CALL-1 dated 2 March 2026.   In summary, the Judge found that the applicant’s case was hopeless, as she had changed her story multiple times, there was no claim that the Family had the ability to locate her anywhere in Nepal, and that relocation was a viable option. The purported grounds of appeal did not deal with the Board’s focus on the applicant’s credibility, and whilst they were tangentially relevant to the issue of relocation, they were so vague and contrary to her evidence below that they were unhelpful. The Judge did not find any error of law, procedural unfairness or irrationality in the Board’s decision, and considered that the application for judicial review was not reasonably arguable.

The present appeal

6.  By a Notice of Appeal filed on 10 March 2026, the applicant appealed against the Judge’s decision. She stated in the Notice of Appeal that she cannot return to Nepal for fear of her life and that the authorities would not protect her from her enemies, that she would face a genuine risk of harm upon refoulement, and there was a failure to consider her COI conditions.  

7.  The applicant lodged written submissions in which she stated (inter alia)  that (1)  the Board failed to follow a high standard of fairness in providing her with the opportunity to present her claim and failed to consider her evidence and submissions; (2)  the Board failed to consider the COI on the lack of state protection or to give weight to the corroborative reports; (3)  internal relocation was not feasible despite the vast size and population of her country; (4)  the Board’s decision was irrational and its conclusions were unsupported by the evidence. It ignored credible documentary or witness evidence, mischaracterised her testimony and relied on irrelevant facts; (5)  the Board misdirected itself on the threshold test in considering the risk grounds and misapplied the burden and standard of proof; (6)  the Judge mistreated the Board’s credibility findings as conclusive when the risk assessment should be holistic; (7)  the decision was not compatible with her constitutional rights.

8.  At the hearing, the applicant indicated that she had nothing to add to her written submissions.

Our decision

9.  In assessing the merits of the appeal, we have regard to the legal principles which this Court has adopted in dealing with appeals in non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].   In particular, the role of the Court in a judicial review is not to provide a further avenue of appeal.  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.  In the determination of an appeal against the refusal of leave by the Court of First Instance, 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.  It is not the role of this Court to examine the decision of the Board afresh as if the appeal were a fresh application for judicial review.

10.  It is well-established that the assessment of evidence, COI information, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director as they are primary decision makers. The Court, in its supervisory role, will not intervene by way of judicial review unless there are errors of law, procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022.

11.  We would first make the overall observation that the numerous grounds advanced by the applicant and her submissions in this appeal were general assertions unsupported by particulars.  They did not engage with the reasons of the Board in rejecting her evidence and claims, and did not relate to the facts of her claim.  They did not show any reasonably arguable legal error, procedural unfairness or irrationality in the Board’s decision as observed by the Judge. This in itself is sufficient to dispose of the appeal. We go on to further address some of the points raised by the applicant.

12.  The applicant’s complaint that she was not given the opportunity to present her claim is unfounded.  She attended the hearing before the Board and was invited to clarify aspects of her claim, to which she gave only short assertions of facts without providing any further information.   She was not able to identify the evidence or the COI or reports which she claimed the Board had failed to consider, or how such failure would have affected the Board’s assessment.   The complaint that the Board ignored credible witness evidence does not relate to her claim.   She alleged that the Board misdirected itself on the threshold test in considering the risk grounds and the standard and burden of proof, but did not explain any further.  We note that in fact, the Board correctly set out the legal principles, the requisite thresholds under each of the applicable grounds, and the burden and standard of proof to be met by the applicant in claiming non-refoulement protection.[8]  There is no merit in this complaint.

13.  On the issue of state protection, the Board took into account the COI referred to in items 1 to 9 of the Appendix to the Director’s Decision which showed that sufficient protection would be available to the applicant if she returned to Nepal.[9] The Board found that even if the applicant’s claim were true, the fact remains that the applicant had never availed herself of state protection.[10]   Therefore, we do not agree that it is reasonably arguable that the Board failed to consider the lack of state protection on the basis of the COI.

14.  On the issue of internal relocation, the Board in fact found that given the absence of any real risk of harm, and the existence of state protection, the question of internal relocation did not arise.  In our view, there is no arguable error in the Board’s determination, as it was not necessary to address the option of internal relocation when the applicant failed to make out her case on any of the available grounds.   Nevertheless, the Board went on to determine that, based on the COI information and the applicant’s ten years of work experience, it would be feasible for her to relocate within Nepal if it were necessary for her to do so.   We do not agree that it is reasonably arguable that the Board wrongly assessed the feasibility of internal relocation. 

15.  The applicant argued that the Judge mistreated the Board’s credibility findings as conclusive. We do not agree.  The Judge’s point was that the Board failed to address the Board’s findings regarding the applicant’s credibility. That being the case, the applicant did not have an arguable case that she satisfied the thresholds of the applicable grounds.  

16.  The applicant has not been able to demonstrate with particulars any error in the reasoning of the Judge or advance any viable ground of appeal against the Judge’s decision.  We are satisfied that the Judge gave proper and adequate reasons for his holding that the intended judicial review had no prospect of success.  There is no proper basis for us to disturb the Judge’s decision.  

17.  There is a procedural point which we wish to highlight.  The applicant’s Form 86 was filed out of time by a few days. The Judge noted the short delay and disregarded the late application as it would have no impact on his decision.   Under Order 53 rule 4(1)  of the Rules of the High Court (Cap. 4A), an application for leave to apply for judicial review must be made promptly and in any event within three months from the date when grounds for the application first arose.  As a matter of procedure, therefore, the applicant needs to seek an extension of time in which to apply for judicial review. The court in such a situation will need to address two interrelated issues. The first is whether an extension of time should be given. The second is whether leave to apply for judicial review should be given (and the merits of the leave application will be relevant to the consideration of whether an extension of time should be given). We would accept that the circumstances of the present case would justify treating the Judge’s decision as (1)  having granted an extension of time on the basis that it was short, but dismissing the leave application, or (2)  having refused the extension of time by reference to the lack of merits of the leave application. Either way, the applicant is not prejudiced, as the Judge did consider the merits of the leave application.

18.  Accordingly, we dismiss the appeal.