RE TAMANG GANGA BAHADUR

CACV 302/2025, [2026] HKCA 4

On appeal from [2025] HKCFI 1605

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 302 OF 2025

(ON APPEAL FROM HCAL 299/2020)

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J U D G M E N T

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Hon Barma JA (giving the Judgment of the Court):

1.  This is an appeal against the decision of Deputy High Court Judge To (“the Judge”) given on 22 April 2025[1] (“the Leave Decision”) refusing to grant leave for the applicant to apply for judicial review[2]. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”) dated 23 January 2020 (“the Board’s Decision”) dismissing the applicant’s appeal against the decision of the Director of Immigration dated 26 November 2018 rejecting the applicant’s non-refoulement claim.

2.  The applicant’s background, the basis of his claim and the Board’s reasons in reaching the Board’s Decision have been set out by the Judge in the Leave Decision at [1]-[15], which will not be repeated.

3.  After considering the documents filed by the applicant and his oral submissions at the hearing of the leave application, the Judge dismissed the application for the reasons stated at [17]-[19] of the Leave Decision.

Appeal to this court

4.  By a Notice of Appeal dated 19 May 2025, the applicant’s complaints can be summarised as follows: since he was a self-represented litigant, he was unfairly disadvantaged in comparison to represented litigants; the failure to provide any language or legal assistance was harsh; and the Judge displayed unfairness and neglected his individual circumstances and difficulties.

5.  By written submissions dated 19 November 2025, he further asserted, in essence, that he cannot read, write, or understand English; complained he was unable to obtain free legal representation; and that the Judge failed to engage with the grounds he raised which amounted to an error of law.  The applicant also complained at [17] of his submissions that the court should have “arranged an oral hearing with interpretation” in order for him to explain his grounds.

6.  We heard the appeal on 16 December 2025, at which the applicant appeared in person.  At the hearing, the applicant submitted that he had incurred a debt in Nepal which, because he is “penniless”, he would be unable to repay.  He further submitted that as he did not know where his relatives are currently located in Nepal, it would be “a bad situation” if he were to return.

Discussion

7.  As this court has often stated, an appeal to the Court of Appeal is not a fresh application for judicial review.  It is necessary to identify some error on the part of the judge that would justify this court in intervening: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  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.  An appeal is not the occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but were not raised before the judge.  In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and the court will only reverse that decision if an appellant could demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

8.  We are unpersuaded by the applicant’s complaint of a lack of legal representation, as it does not follow that the high standards of fairness applicable require that a non-refoulement protection claimant be absolutely entitled to legal representation at all stages of the screening process or the legal proceedings ensuing therefrom.  See Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 37 and Re Ahmed Syed Rafiq [2018] HKCA 178.

9.  The applicant’s complaint of prejudice by reason of his lack of proficiency in English is unfounded and of little or no merit.  We note that he was able to, either by himself or with assistance from others, lodge with the court applications and submissions written in comprehensible English.  Furthermore, the Judge had adequately dealt with the applicant’s complaints on procedural unfairness due to the lack of language assistance and legal representation: the Leave Decision, [17]. 

10.  There is also no substance in the applicant’s complaint regarding the lack of opportunity to present his case or to explain his grounds for judicial review to the Judge, as a hearing (at which the applicant attended) had been fixed for the leave application.  The Leave Decision was made by the Judge after having considered the documents filed as well as the oral submissions made by the applicant in open court.

11.  The applicant has failed to identify any error on the part of the Judge and thus failed to raise any viable ground of appeal. The points advanced by the applicant were bare assertions unsupported by particulars or evidence.  General assertions of fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6]. 

12.  In the present case, the Board concluded that the applicant was untrustworthy and failed to prove the centrepiece of his claim: the Leave Decision, [11]-[15].  These were factual findings open to the Board on the evidence, and were sufficiently canvassed and considered by the Judge at the Leave Decision, [18].  We see no basis to interfere.

13.  The applicant has failed to demonstrate how the Board had acted unlawfully or procedurally unfairly in reaching its Decision, or how such Decision could be said to be Wednesbury unreasonable.

14.  As we have noted, the applicant advanced no viable grounds of appeal against the Judge’s decision.  There is therefore no merit in the appeal and we dismiss the appeal accordingly.