KC AMAR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 257/2025, [2025] HKCA 969

On Appeal from [2025] HKCFI 1707

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 257 OF 2025

(ON APPEAL FROM HCAL NO 3571 OF 2019)

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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):

Background

1.  On 28 April 2025, Deputy High Court Judge Teresa Wu refused to grant leave to the applicant to apply for judicial review of the decision of the Torture Claims Appeal Board (“the Board”)  of 14 November 2019.[1]  The applicant filed a notice of appeal against the decision on 2 May 2025.

2.  This appeal was scheduled to be heard on 28 October 2025.  Despite the directions from the High Court to the applicant dated 5 September 2025, the applicant failed to lodge written submissions by the stipulated time. As the said directions were not complied with, the hearing date has been vacated pursuant thereto.  The Court will deal with this appeal on paper.

3.  The applicant is a national of Nepal.  He arrived Hong Kong on 20 November 2014 as a visitor and subsequently overstayed.  He was arrested by the police on 18 June 2015.  He lodged his non-refoulement claim on 20 June 2015 on the basis that he will be harmed or killed by the Hindus of Shivalaya (“HOS”)  because he was accused of slaughtering a cow, and he also feared that he would be imprisoned on charges of slaughtering a cow.

4.  By a Notice of Decision dated 24 September 2018, the Director of Immigration (“the Director”)  rejected the applicant’s non-refoulement claim on all applicable grounds including torture risk[2],

BOR 2 risk[3], BOR 3 risk[4] and persecution risk[5].

5.  The applicant filed an appeal against the Director’s decision.  He appeared at the hearing of his appeal before the Board on 27 September 2019.  The Board found, among other things, that there was no evidence to show that the HOS are a threat to the applicant.  The Board also found that the applicant had been treated in a fair manner by the authorities, which was not disputed by the applicant at the hearing, and there was nothing to show that he would be treated unfairly if he were re-arrested.  Besides, the Board considered that the applicant could safely relocate to Lalitpur or Pokhara upon his return to Nepal.  Thus, the Board concluded that the applicant failed to make out his claims and rejected the appeal on 14 November 2019.

The judge’s decision

6.  The applicant filed a Form 86 and an affirmation on 2 December 2019 to seek leave to apply for judicial review against the decision of the Board.  His ground was that the Board’s decision was unfair and unreasonable.

7.  The hearing of the leave application was conducted before DHCJ Teresa Wu on 5 February 2025.  The judge found the applicant had not shown any error of law, procedural unfairness or irrationality in the Board’s decision.  As the applicant failed to show that he had any realistic prospect of success in his proposed judicial review, the judge refused the leave application on 28 April 2025.

Grounds of appeal

8.  In his notice of appeal, the applicant stated that he disagreed with the decision makers as they did not determine his claim fairly and relied on some web news which was not officially recognised.  He further said that he did not think that his claim had been determined fairly.

Legal principles

9.  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.  In particular, in an appeal against refusal of leave to apply for judicial review in a non-refoulement case, 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’s role is not to examine the Board’s or the Director’s decision afresh as if it were a fresh application for judicial review.

Analysis and disposition

10.  The applicant’s grounds of appeal are not supported by any particulars.  He failed to identify the particular web news referred to in his ground of appeal.  He also failed to point out any particular errors of law, failure to take account of relevant matters already placed before the court or other mistakes in the judge’s decision.

11.  Thus, the applicant’s appeal is devoid of merit and is dismissed accordingly.