Fa and Others v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

CACV 488/2021, [2026] HKCA 1431

On Appeal From [2021] HKCFI 3056

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 488 OF 2021

(ON APPEAL FROM HCAL NO 136 OF 2019)

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BETWEEN

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JUDGMENT

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

1.On 20 October 2021, Deputy High Court Judge P Li made an order (“the Order”) refusing to grant to the Applicants leave to apply for judicial review.  The intended judicial review was against the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dated 9 November 2018, whereby the Board dismissed the Applicants’ appeal against the decision of the Director of Immigration dated 29 September 2017 rejecting their non-refoulement claims.

2.The Applicants lodged a Notice of Appeal against the Order on 1 November 2021.  However, the Applicants failed to lodge appeal bundle in accordance with the directions given by the Registrar of Civil Appeals on 17 January 2022 as subsequently amended on 15 March 2022.

3.On 12 July 2022, the Court made an unless order (“the Unless Order”) requiring the Applicants to lodge the appeal bundle within 7 days from the date of that order, ie by 21 July 2022[1], failing which their appeal would be dismissed without any further order of the Court.  The Applicants failed to comply with the Unless Order.  The Applicants’ appeal was accordingly dismissed.

4.On 5 December 2025, the Applicants applied for relief from sanction for their failure to comply with the Unless Order.

5.On 15 June 2026, this Court gave its judgment (“the CA Judgment”) dismissing the Applicants’ application for relief from sanction for their failure to comply with the Unless Order.

6.By a Notice of Motion filed on 9 July 2026, the Applicants applied for leave to appeal the CA Judgment to the Court of Final Appeal.  In the Notice of Motion, the Applicants merely state that “the appeal involves a question or questions of great general or public importance”.

7.In their written submissions dated 6 August 2026, the Applicants repeat that they are of Christian faith, and allege generally that the Director, the Board and the court reached decisions that were wrong in law and procedurally unfair, they failed completely to look into, investigate, or assess the actual religious faith and current religious practices of the 2^nd and 3^rd Applicants, they focused heavily and exclusively on historical credibility issues rather than properly evaluating the objective risks faced by the 2^nd and 3^rd Applicants, the Board failed to discharge the positive legal duty to independently inquire into the real-life circumstances and specific religious risks faced by the 2^nd and 3^rd Applicants, the Board acted procedurally unfairly by failing to ask them questions or provide any opportunity for questions or submissions regarding all 3 applicants, and the court erred in failing to recognize that the Board failed to discharge the said duty.

8.Pursuant to paragraph 3 of Practice Direction 2.1, we determine the present application for leave to appeal on paper without an oral hearing.

9.Under s 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484, an appeal shall lie to the Court of Final Appeal at the discretion of the Court of Appeal or the Court of Final Appeal in any civil cause or matter if, in the opinion of the Court of Appeal or the Court of Final Appeal (as the case may be), the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision.

10.No question of great general or public importance involved in the intended appeal is identified in the Notice of Motion.  The allegations raised by the Applicants are general assertions without particulars, and in any event are tied to the particular facts of their case.  We are unable to see any question of great general or public importance being involved in the intended appeal.  The Applicants have not raised any viable ground of appeal against the CA Judgment.  We are satisfied that the intended appeal has no reasonable prospect of success.

11.There is also no basis to grant leave to appeal on the “or otherwise” limb in s 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance.

12.Accordingly, the application for leave to appeal is refused and the Notice of Motion is dismissed.

13.For the avoidance of doubt, the non-compliance with Order 80, rule 2 of the Rules of the High Court, Cap 4A, in relation to the 3^rd Applicant is treated as an irregularity without rendering his application as a nullity.

The 1^st to 3^rd Applicants, acting in person

[1]  See Order 3, rule 2(5) and (6) of the Rules of the High Court.