RE BISHNU RAI JIMEE

CACV 229/2025, [2025] HKCA 989

On appeal from [2025] HKCFI 1562

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 229 OF 2025

(ON APPEAL FROM HCAL NO. 2438 OF 2019)

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J U D G M E N T

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Hon Chu VP (giving the Judgment of the Court):

1.  This is an appeal against the decision of Deputy High Court Judge To (“the Judge”) given on 15 April 2025 ([2025] HKCFI 1562) dismissing the applicant’s application for leave to apply for judicial review. The intended judicial review is in respect of a decision of the Torture Claims Appeal Board (“the Board”) dated 26 July 2019, which dismissed her appeal against the decision of the Director of Immigration (“the Director”) dated 17 September 2018 rejecting her non-refoulement protection claim.

2.  The applicant’s appeal was scheduled to be heard on 23 October 2025. She was directed to lodge her written skeleton argument not less than 28 days before the hearing and further warned that if she failed to do so, she shall be deemed to have waived the right to have an oral hearing and the hearing date would be vacated with her appeal being determined on paper. This was communicated to the applicant by the Court’s letter dated 25 August 2025.

3.  Despite the directions, the applicant has failed to lodge a skeleton argument by the stipulated time. The hearing date was accordingly vacated, and we have proceeded to process this appeal on paper based on the available materials.

The applicant’s claim

4.  The applicant is a national of Nepal, aged 43. She first came to Hong Kong to work as a foreign domestic helper on 26 October 2004. She last entered Hong Kong on 17 November 2013. On 11 June 2014, she was convicted of conspiracy to defraud by entering into a bogus marriage arrangement and sentenced to 12 months’ imprisonment. Her employment contract was consequently terminated. While serving her sentence, she lodged a non-refoulement claim on 18 January 2015. After her release, she married a Nepalese in Hong Kong and applied for a dependent visa, which was rejected by the Immigration Department on 5 July 2016.

5.  The applicant’s non-refoulement claim is based on her fear of being harmed or killed by her ex-husband (“Bhupal”) because her conviction and prison sentence have damaged his and their son’s reputation. Her claim was set out in details in [6] of the Director’s decision and [23] of the Board’s decision.

6.  In gist, the applicant claims that her sister had told her that Bhupal was angry about her imprisonment which he considered has tarnished his and their son’s reputation. She has not sought help from the police in Nepal. Her last contact with Bhupal was about 8 or 9 years ago. She claims she cannot relocate within Nepal as she has no means to make a living.

The decisions of the Director and the Board

7.  By a decision dated 17 September 2018, the Director rejected the applicant’s non-refoulement claim having regard to the torture risk[1], BOR 2 risk[2], BOR 3 risk[3] and persecution risk[4].

8.  The applicant appealed to the Board. A hearing took place on 20 May 2019 during which the applicant gave evidence and answered questions from the Board. By a decision given on 26 July 2019, the Board dismissed her appeal.

9.  In summary, the Board found the applicant was not forthcoming in her evidence, her account was vague and lacking in particulars despite repeated requests for details and clarifications. The Board doubted her allegation of threats from Bhupal, particularly on the claim of damage to reputation, which undermined the reliability of her evidence. The Board also pointed out that her claimed fear was founded on hearsay evidence with no independent verification. The Board also found that the reaction of Bhupal and the alleged threat and risk of harm was disproportionate to her conviction and imprisonment. The Board further noted there was no indication of state involvement and, on the basis of objective country of origin information (COI), considered that state protection was reasonably available to the applicant. The Board concluded that the applicant failed to establish a case for non-refoulement protection under any of the applicable grounds.

The Judge’s decision

10.  On 22 August 2019, the applicant filed a Form 86 to seek leave to apply for judicial review against the Board’s decision. She did not advance any ground for seeking relief in her Form 86, and only stated in her supporting affidavit that she was not satisfied with the Board’s decision.

11.  The Judge heard the leave application at a hearing on 2 April 2025. By a Form CALL-1 dated 15 April 2025, the Judge dismissed the application and gave his reasons at [12] and [13] as follows:

“12. The Applicant did not advance any ground of judicial review in Form 86. In her supporting affidavit, she stated that she was not satisfied with the Board’s Decision. In effect, she is seeking to challenge the Board’s finding of fact that she would not face any real harm or risk if returned to Nepal. That is not permissible. At the hearing, after the legal principle in the above section had been explained to her, she confirmed she had no complaints about error of law, procedural unfairness, and unreasonableness or irrationality in the Decision.”

“13. Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, this Court is satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness. The Board assessed the Applicant’s claim on the basis of her case as she asserted. It was on that basis that the Board found the Applicant’s feared ill-treatment is not well-founded. Then, applying the law to the above finding of fact, the Board came to the conclusion that the Applicant was not entitled to non-refoulement protection under any of the four applicable grounds under the USM. These are mixed finding of facts and of the law. Insofar as they are finding of the law, the Board is absolutely correct. Insofar as they are finding of fact, they are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality. The Court could detect no error of law or procedural unfairness in the Decision. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. Basically, the Applicant failed to discharge her burden of proving her fears and risks. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success.”

This appeal

12.  By a notice of appeal dated 24 April 2025, the applicant appeals the Judge’s decision to this court.

13.  The notice of appeal stated that the applicant did not want to go back to Nepal because she has married a Hong Kong resident on 11 July 2016, and that she had applied for a dependent visa but was rejected by the Immigration Department. As such, the appeal is the only way she could remain in Hong Kong with her husband.

Our reasons for judgment

14.  The general principles regarding an appeal in a non‑refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14. In sum, the role of the court in a judicial review is not to provide a further avenue of appeal. The primary decision makers are the Director and the Board. Though in non-refoulement cases the court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of issue at hand, the court should not usurp the role of the Board. Assessment of evidence and Country of Origin Information materials and 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.

15.  In light of the established legal principles set out above, we are of the view that the appeal has no merits. Our reasons are as follows:

(1)  It is evident from the notice of appeal that the applicant’s main reason for the appeal is her wish to remain in Hong Kong with her husband. In the first place, the fact that she has married a Hong Kong resident does not give her a right to enter or to remain in Hong Kong. It is well-established that a family member (who has a right of permanent residence in Hong Kong) of a person (who has no right to remain in Hong Kong) cannot rely on the family member’s own rights under the Bill of Rights or the Basic Law to require the Director to grant a right to remain in Hong Kong to that other person: BI v Director of Immigration [2016] 2 HKLRD 520 at [92(7)] and Comilang Milagros Tecson v Director of Immigration (2019) 22 HKCFAR 59 at [57], [65] and [69]; Re Purisima Aida P [2022] HKCA 637 at [15]. Accordingly, the applicant’s marriage to a Hong Kong resident is not a relevant consideration in assessing her non-refoulement claim.

(2)  Likewise, the fact that the applicant’s wish to remain in Hong Kong with her husband is not a viable ground to appeal the Judge’s decision.

(3)  Further, the applicant has not identified with particulars any error in the Judge’s decision. The Judge, having scrutinised the Board’s decision and for reasons given in his decision, found no proper basis to disturb it. We agree with the Judge. The Board had considered and analysed the applicant’s evidence and the relevant COI before concluding that she failed to establish the risk of harm as claimed. This is an assessment within the Board’s purview and adequately supported by reasons and analysis. In the absence of legal error, irrationality or procedural irregularity, the court has no basis to interfere with the Board’s findings and decision. It follows that the Judge’s holding that the intended judicial review has no reasonable prospect of success cannot be faulted.

Order

16.  For the above reasons, this appeal is dismissed.