Gurung Puspa and Another v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
|
CACV 1220/2025, [2026] HKCA 1223 On Appeal From [2025] HKCFI 5880 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO 1220 OF 2025 (ON APPEAL FROM HCAL NO 1086 OF 2020) ________________________ BETWEEN
________________________
________________________ JUDGMENT ________________________ Hon Chow JA (giving the Judgment of the Court): 1.This is the Applicants’ appeal against the order of Deputy High Court Judge K W Lung (“the Judge”) dated 9 December 2025 (“the Order”) refusing to grant leave to the Applicants to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 22 May 2020, whereby the Board dismissed the Applicants’ appeals against the decision of the Director of Immigration (“the Director”) dated 3 April 2017 rejecting the Applicants’ non-refoulement claims with reference to the BOR 2 risk[1]. 2.The 1st and 2nd Applicants are mother and son. The 1st Applicant is a national of Nepal. She married a man named Binod Tamang (“Binod”) in a temple in Nepal in 2001, but according to her, the formality of their marriage was not legally recognised[2]. The 1st Applicant and Binod were separated in around mid-2004[3]. She entered Hong Kong illegally on 5 February 2008[4]. While in Hong Kong, the 1st Applicant cohabited with a Nepalese man (Anil Gauchan)[5] and gave birth to the 2nd Applicant out of wedlock on 25 October 2009[6]. The Applicants allege that, if refouled to Nepal, they will be harmed or killed by Binod because she refused to stay with Binod after their separation and gave birth to the 2nd Applicant and a daughter with another man in Hong Kong[7]. 3.The Applicants’ backgrounds, the basis and procedural history of their claims, the findings of the Board and its reasons for dismissing their appeals against the Director’s decisions dated 27 November 2014 and 3 April 2017 have been set out in detail in the Board’s decisions dated 15 December 2016 (“the Board’s 2016 Decision”) and 22 May 2020 (“the Board’s 2020 Decision”) respectively, and summarised by the Judge in the Judge’s decision (see §§1-4, 7, 8 and 11-16 of the CALL-1 Form). We do not propose to repeat them here. 4.The Judge’s reasons for dismissing the Applicants’ leave application are set out at §§19-28 of the CALL-1 Form. In gist, the Judge held that the Applicants had not raised any valid ground to challenge the Board’s 2020 Decision, and there was no child specific issue which the Board had not considered because of the lack of legal representation for the 2nd Applicant in dismissing his appeal. THIS APPEAL 5.In their Notice of Appeal filed on 22 December 2025, the Applicants assert that the Judge did not assess the 2nd Applicant’s claim carefully. 6.In their written submissions lodged on 9 June 2026, the Applicants allege, inter alia, that:
7.At the hearing of the appeal, the 1st Applicant said that, if the Director wished to send her children (including the 2nd Applicant) back to Nepal, she hoped that they would be allowed to complete their education in Hong Kong first. DISCUSSION The 1st Applicant 8.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)). 9.Further, the assessment of evidence, country of origin information (“COI”), 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: Re Kartini [2019] HKCA 1022, at §13. No such error of law or procedural unfairness or irrationality in the Board’s 2020 Decision is shown in the present case. 10.The ground of appeal raised in the Notice of Appeal does not concern the 1st Applicant. The matters raised in her written submissions are all general assertions against the decisions of the Director, the Board and the Judge, and do not constitute valid grounds of appeal against the Order. The implied suggestion that the Director and the Board did not give reasons for their decisions is plainly unjustified. Both the Director and the Board gave full and detailed reasons for their respective decisions in determining the 1st Applicant’s claim with reference to the BOR 2 risk. 11.The 1st Applicant has failed to raise any viable ground of appeal against the Order. 12.The 1st Applicant’s appeal has no merits, and is dismissed. The 2nd Applicant 13.The 2nd Applicant is a minor. The Court’s approach in considering a minor’s claim for non-refoulement protection is well established, and has been set out in Fabio Arlyn Timogan [2020] HKCA 971 and Re Jasvir Singh [2021] HKCA 53. It is not necessary to repeat the same in this judgment. 14.In the present case, the 2nd Applicant’s claim was premised fundamentally on the claim of the 1st Applicant. The Board’s 2020 Decision is to be read with the Board’s 2016 Decision (see the first page and §1 of the Board’s 2020 Decision). The Board rejected the 1st Applicant’s case that Binod would still have any real intention to seriously harm or kill the Applicants, or have the ability to locate and inflict harm on them, when (i) almost 17 years had passed since the 1st Applicant encountered domestic violence and verbal threats from Binod in around 2002 or 2003, and (ii) Binod himself had got married and had a child (see §§9, 10 and 16 of the Board’s 2016 Decision, and §§8 and 9 of the Board’s 2020 Decision). The Board also found, based on updated COI, that state protection would be available to both Applicants in Nepal (see §7 of the Board’s 2020 Decision). Once the 1st Applicant’s non-refoulement claim was rejected, the 2nd Applicant’s non-refoulement claim was left with no support or foundation. 15.The Judge was satisfied that there was no child specific issue which the Board had not considered because of a lack of legal representation for the 2nd Applicant. No child specific issue has been raised in this appeal, and we are unable to see any such issue arising on the materials before us. 16.In all, the 2nd Applicant’s appeal has no merit, and is dismissed. 17.For the avoidance of doubt, we shall treat the non-compliance with Order 80, Rule 2 of the Rules of the High Court, Cap 4A in these proceedings as a mere irregularity without rendering the 2nd Applicant’s appeal a nullity.
The 1st and 2nd Applicants, appearing in person [1] This refers to the risk of being arbitrarily deprived of their lives under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383. [2] See §§1-2 of the Board’s decision dated 15 December 2016. [3] See §8(1) of the Director’s decision dated 27 November 2014. [4] See §4 of the Board’s decision dated 15 December 2016. [5] See §8(1) of the Director’s decision dated 27 November 2014. [6] See §13 of the Director’s decision dated 27 November 2014. [7] See §§4.1 and 20 of the Board’s decision dated 15 December 2016, and also §7 of the Director’s decision dated 27 November 2014. |
Cases cited in this judgment