BISHWAKARMA SANTA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 423/2025, [2026] HKCA 187

On Appeal From [2025] HKCFI 1920

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 423 OF 2025

(ON APPEAL FROM HCAL NO. 2868 OF 2019)

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J U D G M E N T

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Hon Anthony Chan JA (giving the Judgment of the Court):

1.  This is the Applicant’s appeal against the order (“Dismissal Order”) of Deputy High Court Judge K.W. Lung (“Judge”) dated 17 June 2025 by which her application for leave to apply for judicial review (“Leave Application”) against the decision of the Torture Claims Appeal Board (“Board”) dated 28 August 2019 (“Board’s Decision”) was dismissed. By that decision, the Board upheld the decision of the Director of Immigration (“Director”) to reject the Applicant’s non-refoulement claim.

2.  The Applicant is a national of Nepal. The basis of her non-refoulement claim had been set out in detail in the Board’s Decision, which was summarized in the Judgment below (“Judgment”). In gist, the Applicant claims that if she returns to Nepal she would be harmed or killed by Maoists due to her membership in or support for the rival Nepali Congress, and be harmed or killed by Hindus due to her low caste origin and conversion to Christianity.

3.  In [12] to [17] of the Judgment, the Judge gave detailed reasons for refusing the Leave Application.

4.  By a Notice of Appeal filed on 19 June 2025, the Applicant appeals against the Dismissal Order. The Applicant lodged her appeal bundle on 3 July 2025. In summary, the Applicant raised the following grounds of appeal:

(1)  The Applicant was not provided with legal and language assistance in her application for leave for judicial review and in this appeal, which resulted in unfairness;

(2)  The Judge failed to consider or discuss in detail the Applicant’s grounds for judicial review, or to consider her individual circumstances and difficulties and the fear of loss of life;

(3)  The Board’s Decision is irrational as it did not sufficiently address the Applicant’s fear of loss of life; and

(4)  The lack of an oral hearing for the Leave Application resulted in procedural unfairness, as an oral hearing would have allowed the Applicant to explain errors in the Board’s Decision, including issues of credibility, with the help of an interpreter.

5.  Pursuant to the directions given by the Registrar of Civil Appeals on 7 November 2025, this appeal has been referred to this Court to be disposed of on paper without an oral hearing, and we consider it appropriate to do so, especially in light of the Director’s written confirmation lodged on 28 October 2025 that the Applicant has been removed from Hong Kong.

6.  The general approach of this Court in dealing with appeals in non-refoulement cases has been 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, this Court 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. This Court’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)]).

7.  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 at [13].

8.  In respect of the grounds of appeal, for Ground (1), ie, the lack of legal and language assistance, it has been repeatedly emphasised by this Court that as a matter of law, a non-refoulement claimant is not entitled to free legal representation at all stages of the process and that the high standard of fairness required by law does not entail interpretation service being made available to an applicant all the time as he desires: Re Pante Luisa Tuppil [2025] HKCA 1123 at [11]. We note that the Applicant attended the hearing of her case before both the Board and the Judge, and interpretation service is normally available for such hearings.

9.  As for Ground (2), at [11] of the Judgment, the Judge set out the Applicant’s grounds for judicial review, and at [15] the Judge addressed and gave reasons for rejecting each of those grounds. The Applicant has not identified any specific error in the Judge’s reasons for rejecting those grounds. As for consideration of the Applicant’s individual circumstances and difficulties or her fear of loss of life, that is primarily within the province of the Board.

10.  For Ground (3), ie, the Board’s failure to sufficiently address the Applicant’s fear of loss of life, in the absence of error of law or procedural unfairness or irrationality in the Board’s Decision, the court will not intervene. Upon reviewing the Board’s Decision, we do not see any such error.

11.  Ground (4), ie, the lack of an oral hearing for the Leave Application resulted in procedural unfairness. It is plainly misconceived. The Judge dismissed the Leave Application after conducting an oral hearing at which the Applicant attended in person. For the reasons above, we do not see any merit in the grounds of appeal.

12.  In the premises, this appeal is dismissed with no order as to costs.