DAS NEPAL v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 993/2025, [2026] HKCA 925

On Appeal From [2025] HKCFI 5134

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 993 OF 2025

(ON APPEAL FROM HCAL NO 1719 OF 2020)

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BETWEEN

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JUDGMENT

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Hon Ng J (giving the Judgment of the Court):

INTRODUCTION

1.  This is the Applicant’s appeal against the order of DHCJ Bruno Chan (“the Judge”) dated 4 November 2025 (“the Order”) refusing to grant leave to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 27 November 2019 (“the Board’s Decision”).

BACKGROUND

2.  The Applicant is a national of India. The Applicant lodged a non-refoulement claim on the basis that, if refouled, he would be harmed or killed by his creditor over his unpaid debts. The Applicant’s claim was rejected by the Director of Immigration (“the Director”) on 3 August 2018, and the appeal against the Director’s decision was rejected by the Board on 27 November 2019. Details of the Applicant’s claim and the Board’s reasons for rejecting the Applicant’s appeal can be found in the Board’s Decision.

3.  The Applicant’s application for leave to apply for judicial review was refused by the Judge on 4 November 2025. Details of the Judge’s reasons for refusing to grant leave can be found in the CALL-1 Form.

GROUNDS OF APPEAL

4.  In the Notice of Appeal filed on 10 November 2025, the Applicant essentially argued that the Judge erred in law and in principle in refusing his application and the refusal was wrong in fact and in law. The Applicant essentially argued that:

(1) the Judge treated the 6-month delay as automatically fatal without conducting the balancing exercise i.e. weighing the gravity of rights engaged, the Applicant’s lack of access to legal assistance, and the absence of any prejudice to the Board or to public administration.

(2) The Judge failed to appreciate the Board disposed of the Applicant’s appeal purely on paper without conducting an oral hearing.

(3) The Judge and the Board erred by assuming, without adequate evidential basis, that effective state protection was available to the Applicant in India and that internal relocation was a reasonable alternative.

(4) The Judge failed to take into account the Applicant’s personal circumstances when assessing the practicality of internal relocation.

5.  The Applicant has failed to lodge written submissions in support of the appeal in accordance with the directions given by the Registrar of Civil Appeals. Accordingly, the Applicant is deemed to have waived the right to have an oral hearing of the appeal and elected to have the appeal disposed of on paper. Having considered the documents before us, we consider that it is appropriate to deal with the Applicant’s appeal on paper without an oral hearing.

LEGAL PRINCIPLES

6.  In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, 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 of Appeal’s role is not to examine the Board’s decision afresh as if it was a fresh application for judicial review (see Nupur Mst v Director of Immigration [2018] HKCA 524, at §14(6)).

7.  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 below will not intervene by way of judicial review unless there are errors of law, procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022.

DISCUSSION & DISPOSITION

8.  Regarding the Applicant’s out of time application, the Judge did take into account (i) the length of the delay, (ii) the reason for the delay, (iii) the merits of the Applicant’s intended application, and (iv) any prejudice to the putative respondent and to public administration, when considering whether to extend time. It was the Applicant who failed to provide any good or valid reason for such serious delay and to put forward any proper ground to challenge the Board’s Decision.

9.  We are unpersuaded by the Applicant’s complaint of lack of legal and language assistance. As a matter of law, a non-refoulement claimant is not entitled to free legal representation at all stages of the process, and the high standard of fairness required by law would not entail an interpretation service to be made available at any time as the applicant desired. See Re Gurnishan Singh [2018] HKCA 704 at §§11 and 13. It is further noted that the Applicant was able to, either by himself or with assistance from others, lodge with the court applications written in comprehensible English.

10.  Regarding the absence of oral hearing before the Board, the Board may determine an appeal without a hearing if, having regard to the material before it and the nature of the issues raised, the Board is satisfied that the appeal can be justly determined without a hearing: s.12, Schedule 1A Immigration Ordinance (Cap. 115).

11.  The matters raised in the Applicant’s Notice of Appeal are all bare allegations without particulars. They do not constitute any valid grounds of appeal against the Judge’s decision.

12.  The Applicant has failed to identify or substantiate any error in the Judge’s decision refusing to grant leave to apply for judicial review, or raise any viable ground of appeal against the Order.

13.  The Applicant’s appeal has no merit, and is dismissed.