Re Raju Rai

CACV 268/2023, [2025] HKCA 476

On appeal from [2023] HKCFI 2042

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 268 OF 2023

(ON APPEAL FROM HCAL 1123/2019)

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J U D G M E N T

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Hon Barma JA (giving the Judgment of the Court):

1.This is an appeal against the decision of Deputy High Court Judge KW Lung (“the Judge”)  given on 15 August 2023 refusing leave to the applicant to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”)  dated 18 March 2019 (“the Board’s Decision”)  dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”)  dated 9 July 2018 (“the Director’s Decision”)  rejecting the applicant’s non-refoulement claim.

Background

2.The applicant is a national of Nepal. He entered Hong Kong on 22 September 2013 as a visitor, but he overstayed, and he surrendered to the Immigration Department on 5 December 2014.  Thereafter, he lodged a non-refoulement claim made by way of written representations dated 5 December 2014 and 22 January 2015. 

3.The applicant’s claim was based on a fear of being harmed or killed by Maoist rebels.  The details of the applicant’s claim have been summarised by the Judge at [4] and [5] of the Judge’s decision (“the CALL-1 Form”)[1].

4.By a Notice of Decision dated 9 July 2018 (i.e. the Director’s Decision), the Director decided against the applicant’s claim. The Director’s Decision covered the torture risk[2], the BOR 2 risk[3], the BOR 3 risk[4] and the persecution risk[5].

5.The applicant appealed to the Board.  After a hearing on 8 January 2019, the Board dismissed the appeal on 18 March 2019 by the Board’s Decision.  The Board’s Decision covered all applicable grounds for non-refoulement protection.  The Board found, inter alia, that the applicant’s evidence on material events giving rise to the alleged risk of harm (such as a previous assault on him by Maoists in 2009)  was inconsistent and incredible.

The Judge’s decision

6.The applicant filed a Form 86 on 26 April 2019 seeking to judicially review the Board’s Decision, without setting out any grounds for review.  In the applicant’s supporting affirmation, he merely stated that his “dangerous situation” had been disregarded in the processing of his claim.

7.After summarising the facts and background of the case, giving due consideration to the Decisions of the Director and the Board, the Judge refused to grant leave for judicial review.  The Judge gave the following reasons in refusing leave to apply for judicial review at [13] to [19] of the CALL-1 Form:

“13.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

14.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

15.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

‘13.(1)  … Assessment of evidence and COI 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.’

16.  The Board, for the reasons given above, did not accept his evidence on the facts of his claim. There is no valid reason to challenge the Board’s Decision.

17.  The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

18.  The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.

CONCLUSION

19.  I refuse to grant leave for the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.”

Grounds for appeal

8.In the Notice of Appeal dated 28 August 2023, the applicant did not set out any grounds of appeal, but merely stated that he was “very sorry” and that the Judge’s decision “have many error”.

9.In breach of the directions made by the Registrar of Civil Appeals, the applicant failed to lodge his written submissions with the court.  In the circumstances, the applicant is deemed to have abandoned his right to rely on written submissions.

10.The applicant did not request an oral hearing and consented to the appeal being disposed of on paper by the court.  We will accordingly deal with the appeal on paper on the basis of the materials already filed with the court.

Discussion

11.The applicant has in the Notice of Appeal failed to identify any error on the part of the Judge and thus failed to raise any viable ground of appeal.  As this court has often stated, an appeal to the Court of Appeal is not a fresh application for judicial review, it is necessary to identify some error on the part of the judge that would justify this court in intervening.  The applicant has wholly failed to do so.

12.As this court has repeatedly held, an application for leave for judicial review is not a rehearing of the appeal to the Board and the court’s role is not to act as an avenue of further appeal from the Board.  It is incumbent on the applicant to point out the procedural or other public law errors allegedly committed by the Board.  The Judge would not be required himself to come to a view on whether the applicant would face any of the proscribed risks of harm upon return.  The court should not usurp the role of the Board and will only intervene if public law grounds for doing so are established.  See Re Zunariyah [2018] HKCA 14, Re Qadir Sher [2018] HKCA 160, Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152, Re Rizwan alias Rizwan Gulistan [2018] HKCA 162, and Re Masoom Parvez [2018] HKCA 163.  The Judge considered the decisions of both the Director and the Board and found no basis for intervening.  In our view, he was clearly correct to do so.

13.As we have noted, the applicant advanced no viable grounds of appeal against the Judge’s decision.

14.There is therefore no merit in the appeal and we dismiss the appeal accordingly.

The applicant acting in person