Ranjit Bipana and Others v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
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CACV 132 /2025, [2026] HKCA 1754 On appeal from [2025] HKCFI 635 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO 132 OF 2025 (ON APPEAL FROM HCAL NO 2172 OF 2019) ________________________ BETWEEN
_________________________ REASONS FOR JUDGMENT _________________________ Hon Kwan VP (giving the Reasons for Judgment of the Court): 1.This is the applicants’ appeal against the judgment of Deputy High Court Judge K W Lung (“Judge”) dated 4 March 2025 ([2025] HKCFI 635; “Judgment”) refusing to grant leave for the applicants to seek judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning their non-refoulement claims. 2.The applicants also filed a summons on 29 September 2025 (“Summons”), seeking leave to re-amend the amended Form 86 dated 14 August 2020[1] (“Amended Form 86”) in the manner of a draft re-amended Form 86 annexed to the Summons (“Draft Re-amended Form 86”). We directed the Summons to be heard at the same time as the substantive appeal. The putative respondent and the putative interested party informed the Court they take a neutral stance in the Summons and the appeal. 3.At the conclusion of the hearing, leave was granted to the 2nd and 3rd applicants to re-amend the Amended Form 86 and their appeal was allowed on the basis of the amendments. We refused leave to the 1st applicant to re-amend the Amended Form 86 and dismissed her appeal. These are the reasons for judgment. Background 4.The applicants are nationals of Nepal. The 1st applicant last entered Hong Kong as a visitor on 24 January 2014. She was permitted to stay for one week. However, she did not depart and instead overstayed. She surrendered to the Immigration Department on 30 July 2014[2]. She and her husband (another non-refoulement claimant whom she met in Nepal) married in Hong Kong in 2015[3]. The 2nd and 3rd applicants, born respectively in August 2015 and April 2018 in Hong Kong, are the daughter and son of the 1st applicant and her husband[4]. 5.The 1st applicant lodged a non-refoulement claim for herself on 7 August 2014, for the 2nd applicant on 19 November 2015, and for the 3rd applicant on 16 October 2018[5]. Whilst they were legally represented before the Director of Immigration (“Director”), there was no legal representation for them after that. In the proceedings before the Board, the 1st applicant acted for the 2nd and 3rd applicants. She also did so in the Court of First Instance, notwithstanding the requirement under Order 80, rule 2 of the Rules of the High Court (Cap 4A). 6.The 1st and 2nd applicants relied on the same factual basis in support of their non-refoulement claim, namely, that if refouled, they would be harmed or even killed by (i) the 1st applicant’s brother and family, and (ii) her husband’s family[6]. The 1st applicant said that her brother had threatened to kill her and her daughter, as she lied to her brother that she acceded to his request to marry an elderly man in the Ranjit caste but she escaped to Hong Kong where her lover (now husband) was waiting for her[7]. She is also worried that she and her husband are from different castes, which is not accepted by their respective families and the Nepalese society[8]. The 3rd applicant wholly relied on the same facts provided by the 1st applicant as the basis for his claim[9]. 7.The Director rejected the 1st and 2nd applicants’ claim by the Notice of Decision dated 13 October 2017 and the 3rd applicant’s claim by the Notice of Decision dated 10 January 2019. Both decisions covered all the applicable grounds, namely, BOR 2 risk[10], BOR 3 risk[11], persecution risk[12], and torture risk[13]. 8.The applicants lodged an appeal/petition to the Board against the Director’s decisions. An oral hearing was held on 11 March 2019, during which the 1st applicant gave evidence. After hearing the 1st applicant, the Board formed the view that she is “not a witness of truth”, that she has “grossly exaggerated her claims in relation to her marriage”[14], and that her evidence is contradictory even in relation to simple matters, a sign that she was “concocting the evidence to fit a fictitious narrative”[15]. The Board found that neither her family nor her husband’s family considers this to be an unacceptable inter-caste marriage[16]. The Board did not accept that her husband’s family or the community looks down on her and her children[17], that her husband’s relatives do not wish to leave land to her husband or to her son[18], and that her brother is or has ever been a Maoist[19]. The Board also considered that the applicants’ Christian religion will not cause the relatives of her and her husband to seek to harm the applicants[20]. The Board found that the 1st applicant and her husband were each conducting their own business up until the time they came to Hong Kong, and that they were interested in pursuing employment opportunities in Hong Kong because they believed their friend who told them that it was legal to work in Hong Kong as an asylum seeker[21]. The Board dismissed the applicants’ appeal on 15 May 2019 on all the applicable grounds (“Board’s Decision”). The decision of the court below 9.On 30 July 2019, the 1st applicant sought leave, for herself only, to apply for judicial review against the Board’s Decision. The Form 86 and affirmation in support did not raise any ground for seeking relief. 10.On 11 August 2020, the 1st applicant filed an affidavit seeking to include her children as additional applicants in the Form 86. On 14 August 2020, a court order was made to allow the 1st applicant to amend the Form 86, ie the Amended Form 86, to add her daughter and son as the 2nd and 3rd applicants respectively to the leave application. 11.An oral hearing was held on 22 January 2025 before the Judge. After summarising the background of the case and giving due consideration to the evidence given by the 1st applicant, the Judge refused to grant leave for the applicants to apply for judicial review. The reasons for refusal were set out in §§16 to 23 of the Judgment as follows:
The Notice of Appeal and the Summons 12.On 17 March 2025, the applicants, acting in person, filed a Notice of Appeal against the Judgment. The applicants were granted legal aid on 21 August 2025, and their legal representatives filed a Supplementary Notice of Appeal and the Summons on 1 September 2025 and 29 September 2025 respectively. We will first deal with the Summons. The proposed amendments of the Amended Form 86 13.In the Draft Re-amended Form 86, for their intended challenge against the Board’s Decision, the applicants raised four amended grounds as follows:
14.Mr Jeffrey Tam, counsel for the applicants, confirmed in his written submissions that the applicants are no longer pursuing Amended Ground 4 in this appeal[26]. Accordingly, we treat Amended Ground 4 as abandoned in the present application. 15.In the Draft Re-amended Form 86, the applicants submit that they were originally unrepresented before the Court of First Instance, and, in the particular circumstances of this case, and giving due allowance for the difficulties of persons in their position, the Court should grant leave to amend, despite their failure to raise the amended grounds in the court below[27]. 16.In the present case, the amendments proposed by the applicants are substantial. They amount to, effectively, a complete rewriting of the Amended Form 86 by inserting new grounds which were never considered by the Judge. 17.To permit the applicants to amend the Amended Form 86 in such circumstances would mean that the Court of Appeal would not be dealing with an appeal against a judgment of the Court of First Instance, but would be determining an application for leave to apply for judicial review afresh. This is generally not the proper function of the Court of Appeal. In Wong Ho Tong v Director of Lands [2018] 6 HKC 501, at §78, Lam VP (as he then was) said the following:
18.In the circumstances, we consider that strong justification must be shown before the Court should grant leave to the applicants to make the proposed amendments. 19.In our view, the most important consideration is the merits of the proposed new grounds of review. Amended Ground 1 20.In Lavado Mary Jane Mabao & Anr [2022] HKCA 560, G Lam JA reiterated the approach to children’s non-refoulement claim as follows:
21.There is force in this ground for the fact that the 2nd and 3rd applicants were not legally represented in the proceedings before the Board, and that the Board’s jurisdiction under the statutory scheme for non-refoulement claimants is not restricted to the parameters of what was submitted by the 1st applicant. Under the Immigration Ordinance, the Board is given power to conduct its enquiry to ensure that all relevant non-derogable rights of the applicants are given meaningful protection, and the Board is required to exercise its powers to fulfil this positive duty: See A & Ors v Torture Claims Appeal Board / Non-refoulement Claims Petition Office [2024] HKCA 471 at §40. 22.In the present case, the 2nd and 3rd applicants are of tender age. They were plainly so young that they could not make decisions on how their claims should be presented before the Board or make meaningful submissions on their own behalf. 23.It would appear that the Board had not conducted its independent enquiry into whether the 2nd and 3rd applicants’ claims would require separate consideration and assessment beyond the submissions advanced by the 1st applicant, and that the Board had not exercised its powers to fulfil the positive duty to ensure that all relevant non-derogable rights of each of the applicants are given meaningful protection by treating the applicants’ claims as one composite claim: See in particular the Board’s Decision, §§40, 71, 144, 147, 149, 150, 151, 152, 153. As such, given that the 1st applicant’s appeal was dismissed, the Board automatically dismissed the 2nd and the 3rd applicants’ appeal. The Board should have assessed the substantive propositions of fact and made findings on the 2nd and 3rd applicants looking at each of the minors’ personal circumstances. 24.It seems to us reasonably arguable there was an error of principle or approach on the part of the Board relating to the assessment of the 2nd and 3rd applicants’ non-refoulement claims. Amended Ground 2 25.Amended Ground 2 raises the question whether the Board has erroneously made its own assumptions, conjecture or speculations as to what ought to have happened and/or applied its own common sense on the following matters:
26.Regarding the matters in §§(1) and (3) above, in addition to the Board’s indication that it was unable to understand the reasons offered by the 1st applicant why her brother decided that he should be opposed to the marriage just as the relatives of the husband and that he should engage in a campaign of horrific domestic violence against his own sister[29], the Board also relied on the relevant COI to query whether the brother (being a Maoist as alleged by the 1st applicant)[30] would have sought to overthrow the caste system, rather than accepting it and practising the discrimination inherent in it[31]. Besides, it is the 1st applicant’s evidence that her husband’s caste (the Maharjan) is on a similar level with the Ranjit caste[32]. The Board noted that her husband did not discriminate against her and her brother[33], and that there were other aspects of the evidence before it which support its view that the 1st applicant and her husband were living normal lives, and they were not subjected to assaults and harassment in Nepal before coming to Hong Kong[34]. 27.As for the matter in §(2) above, the Board noted that the 1st applicant first insisted at the hearing that her brother was still bearing a grudge because she refused to marry the man whom he had chosen for her. But she contradicted herself later at the hearing by stating that this man had married another woman and “that chapter is finished”[35]. 28.As mentioned above, from the account given in the Board’s Decision, the Board formed the view that the 1st applicant is not a witness of truth and that she has grossly exaggerated her claims in relation to her marriage[36]. Her evidence was contradictory even in relation to simple matters, which led the Board to believe that she was concocting the evidence to fit a fictitious narrative[37]. The Board was not persuaded by the 1st applicant’s testimony in its evaluation of the totality of the evidence. Thus, in our opinion, the matters raised in §§(1) to (3) above are not assumptions or speculations but conclusions supported by the Board’s findings of fact based on its own assessment of the evidence available. 29.We do not think Amended Ground 2 is reasonably arguable. Amended Ground 3 30.Amended Ground 3 challenges the Board’s comments regarding the risk due to inter-caste marriage as being unjustified by the COI in the hearing bundle[38]. 31.The assessment of COI lies primarily within the province of the Board (and the Director). See S & JMA v Torture Claims Appeal Board/Non-Refoulement Claims Petition Office [2025] HKCA 521 at §35(2), per Chow JA. It was the task of the Board to consider the applicants’ own evidence of feared harm for the purpose of assessing whether there was a risk of any proscribed forms of harm, and to review the COI to see whether the applicants’ fear of harm was well-founded. The mere fact that the Board did not address or discuss every single piece of COI placed before it does not, by itself, constitute a ground for judicial review. It is unfair to argue that the Board failed to conduct a sufficient inquiry into the relevant COI simply because it did not specifically refer to one particular piece of information in support of its conclusion. The Board is not required to summarise all the materials it has been provided with merely to prove that it has considered them. The purpose of COI is to assess, by reference to independent and objective sources, whether the applicants’ alleged fear of persecution due to discrimination is well-founded. See B v Torture Claims Appeal Board/Non-Refoulement Claims Petition Office [2023] HKCA 520 at §§48, 50, per Yuen JA. 32.On the basis of having rejected the 1st applicant’s testimony in its evaluation of the totality of the evidence, the Board was entitled, in our view, to come to its conclusion about the risk due to inter-caste marriage. Such conclusion of the Board is also supported by the following evidence from the 1st applicant:
33.In light of the above, we do not consider that the caste-based discrimination COI referred to by the applicants may assist the applicants’ case. We think it is not reasonably arguable that there was any error of law, irrationality or procedural unfairness in the Board’s Decision in this respect. Disposition of the Summons 34.For the above reasons, we grant leave to the 2nd and 3rd applicants to re-amend the Amended Form 86 to raise Amended Ground 1, but not Amended Grounds 2, 3 and 4, in accordance with the Draft Re-amended Form 86 at §§18 to 23. The Re-amended Form 86 shall be filed and served within 14 days from the date of this judgment. 35.We refuse to grant leave to the 1st applicant to re-amend the Amended Form 86 to raise Amended Grounds 2, 3 and 4. Disposition of the appeal and costs 36.We turn to the 3 grounds of appeal in the Supplementary Notice of Appeal. The grounds there track the 3 Amended Grounds in the Draft Re-amended Form 86, which have been discussed and analysed. 37.The appeal of all three applicants would need to be considered in light of the refusal of leave to re-amend the Amended Form 86 to raise Amended Grounds 2 and 3. 38.As can be seen from §§17 and 22 of the Judgment set out above, the Judge appeared to have been too focused on the 1st applicant’s submissions as to the child specific issues for the 2nd and 3rd applicants, without examining whether the Board had in fact conducted an independent assessment of the 2nd and 3rd applicants’ claims, in light of their respective personal circumstances. The Judge did not appear to have looked into the Board’s Decision to ascertain whether an independent assessment had been conducted. 39.For the above reasons, we allow the appeal of the 2nd and 3rd applicants and grant leave to them to apply for judicial review as per Amended Ground 1 in the Re-amended Form 86 at §§18 to 23. We dismiss the appeal of the 1st applicant. 40.No order is made as to the costs of the Summons and the appeal, save that the applicants’ own costs are to be taxed in accordance with the Legal Aid Regulations.
Mr Jeffrey Tam, instructed by Daly & Associates, assigned by the Director of Legal Aid, for the Applicants (Appellants) The Putative Respondent and the Putative Interested Party, attendance excused [1] 1st applicant’s 3rd affidavit, §7: in the Amended Form 86, the 1st applicant added her children as additional applicants to the leave application, and an order to this effect was made on 14 August 2020. [2] Board’s Decision, §29 [3] Board’s Decision, §§124, 140 [4] Board’s Decision, §27 [5] Board’s Decision, §§ 30-31 [6] Director’s decision dated 13 October 2017, §2. It appears that Deputy High Court Judge K W Lung omitted the 1st applicant’s husband’s family in §8 in the Judgment dated 4 March 2025. [7] Judgment, §8 [8] Director’s decision dated 13 October 2017, §7.31 [9] Director’s decision dated 10 January 2019, §1 [10] This refers to a risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383. [11] This refers to a genuine and substantial risk of torture or cruel, inhuman or degrading treatment or punishment covered by Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383. [12] This refers to a risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol. [13] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115. [14] Board’s Decision, §115 [15] Board’s Decision, §124 [16] Board’s Decision, §142 [17] Board’s Decision, §144 [18] Board’s Decision, §145 [19] Board’s Decision, §146 [20] Board’s Decision, §147 [21] Board’s Decision, §143 [22] Draft Re-amended Form 86, §§18 to 23 [23] Draft Re-amended Form 86, §§24 to 35 [24] Draft Re-amended Form 86, §§36 to 39 [25] Draft Re-amended Form 86, §§40 to 43 [26] §17(4) Skeleton Submissions for the applicants [27] Draft Re-amended Form 86, §§45 to 46 [28] Draft Re-amended Form 86, §35 [29] Board’s Decision, §121 [30] Board’s Decision, §§68, 90 [31] Board’s Decision, §§111, 123 [32] Board’s Decision, §80 [33] Board’s Decision, §119 [34] Board’s Decision, §§128 & 130 [35] Board’s Decision, §122 [36] Board’s Decision, §115 [37] Board’s Decision, §124 [38] Draft Re-amended Form 86, §39 [39] Board’s Decision §102 [40] Board’s Decision §§118 & 144 [41] Board’s Decision §80 [42] Board’s Decision §§127-128 |
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