PUN NIKESH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 257/2026, [2026] HKCA 1130

On Appeal From [2026] HKCFI 1407

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 257 OF 2026

(ON APPEAL FROM HCAL NO 3826 OF 2019)

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge To (“Judge”) on 12 March 2026 refusing to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”) dated 19 December 2019.  In that decision, the Board upheld the decision of the Director of Immigration (“Director”) dated 3 September 2018 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Nepal born in 1992 and his claim was made on the basis that if he returned to Nepal, he would be harmed or killed by the family of the victim he injured in a traffic accident for not paying compensation to the victim.  Details of the applicant’s background, the basis of his claim and arguments advanced before the Board as well as the Board’s reasons for rejecting his appeal are all set out in the Board’s decision: see [3] of the Form CALL-1.  The Judge has set out the grounds advanced by the applicant in support of the application and his reasons for refusing the application: see [9] – [10] of the Form CALL-1.

Appeal to this Court

3.  On 17 March 2026, the applicant filed his Notice of Appeal against the Judge’s decision.  His stated grounds of appeal were, essentially, that the decision was unfair, that the Judge made the same decision as the Board and the Director, that his life was still under threat in his home country, and that his case was not determined fairly.

4.  As the applicant did not lodge any written submissions, the scheduled hearing of his appeal was vacated pursuant to the directions of the Court.  We shall determine the appeal on the basis of the available documents and materials.

Discussion

5.  In assessing the merits of the appeal, we shall 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.

6.  In the present case, the Board found that there was no real risk of harm upon refoulement as alleged, because it found that the applicant’s claim of leaving Nepal to avoid the victim’s family was not credible, that the risk of death or ill-treatment was low, that adequate state protection would be available, and that internal relocation to Kathmandu would be a viable option for the applicant.  These are findings of fact open to the Board based on the evidence it received and for the reasons it gave. The applicant has failed to show any reasonably arguable public law error in relation to the Board’s decision.

7.  Equally, the applicant has not been able to demonstrate any error in the decision of the Judge or advance any viable ground of appeal against the Judge’s decision.  We are not satisfied that there is any error in the Judge’s decision.

8.  The applicant’s appeal is accordingly dismissed.