Sherpa Sipara v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

CACV 271/2026, [2026] HKCA 1113

On Appeal From [2026] HKCFI 1408

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 271 OF 2026

(ON APPEAL FROM HCAL NO 3360 OF 2019)

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BETWEEN

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J U D G M E N T

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Hon Winnie Tsui J (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 7 November 2019. In that decision, the Board upheld the decision of the Director of Immigration (“Director”)  dated 15 August 2019 rejecting the applicant’s non-refoulement claim.

Background

2.The applicant is a national of India born in 1991 and her claim was made on the basis that if she returned to India, her ex-boyfriend (Sanjey Kumar)  would harm or kill her due to their break-up which was against his wish. Details of the applicant’s background, the basis of her claim and arguments advanced before the Board as well as the Board’s reasons for rejecting her appeal are all set out in the Board’s decision: see [2] 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 refusal of the application: see [14] – [27] of the Form CALL-1.  

Appeal to this Court

3.On 19 March 2026, the applicant filed her Notice of Appeal against the Judge’s decision.  Her stated grounds of appeal were, essentially, that the Judge and the Board did not scrutinize her problem properly, and that the decisions were unreasonable. 

4.The applicant has lodged written submissions in which she stated that the Judge’s decision was unreasonable, that the Judge erred by not finding the decisions of the Director and the Board to be irrational, that the Director and the Board failed to give reasons justifying their decisions, that the Judge did not analyze her claim properly and reviewed her matter lightly, that the Board did not allow the applicant to arrange for relevant evidence, that the Board relied on sources of news that were not officially recognized or were simply hearsay, that the Board failed to evaluate and make a finding as to whether there was a consistent pattern of gross and mass violation of human rights in her home country, and that the Board failed to analyze and assess whether state protection existed in her home country.  She also stated that she would be killed by her enemies in her home country, and that she had no faith in the government or police. 

5.At the hearing, the applicant had nothing further to add.  

Discussion

6.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.

7.In the present case, the Board found that there was no real risk of harm upon refoulement as alleged, because it rejected the applicant’s account as not credible and untruthful.  Even if the applicant’s claim substantiated, the Board found that the dispute was localized and of a private nature, that the ex-boyfriend was a non-state actor, that the ill-treatment did not attain the minimum level of severity, that adequate state protection would be available, and that internal relocation to Mumbai and Delhi would be viable options 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.  

8.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.

9.The applicant’s appeal is accordingly dismissed.

The Applicant appeared in person