Re Tiwari Ganesh

CACV 778/2026, [2026] HKCA 1880

On Appeal From [2026] HKCFI 3971

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 778 OF 2026

(ON APPEAL FROM HCAL NO. 962 OF 2022)

_________________

________________

_________________

J U D G M E N T

_________________

Hon Chu VP (giving the Judgment of the Court):

Introduction

1.This is the applicant’s appeal against the decision of Deputy High Court Judge Levy dated 23 July 2026[1] refusing to extend time for the applicant to apply for judicial review and dismissing his application for leave to apply for judicial review. The intended judicial review is in respect of the decision dated 23 September 2021 of the Torture Claims Appeal Board (“the Board”) dismissing his appeal against the decision dated 30 September 2019 of the Director of Immigration (“the Director”) which in turn had rejected the applicant’s non-refoulement claim having regard to the torture risk[2], BOR 3 risk[3], persecution risk[4] and BOR 2[5] risk grounds.

Background

2.The applicant is a national of Nepal born in 1988.  He entered Hong Kong illegally and surrendered to the Immigration Department on 25 April 2019.  He later made a non-refoulement claim based on fear of being harmed or killed by people from the Biplab faction of the Maoist party and the Nepalese government.  He claimed that in late 2018, he joined the outlawed Chand Group (which was part of a Maoist faction) and provided firearms training to its cadres; however, when he later attempted to leave the group, he was threatened with death by its commander (“DB”) for desertion. Details of the applicant’s background, the basis of his claim and the Board’s reasons for rejecting his appeal were set out in the Board’s decision[6].

3.The Director rejected the applicant’s claim.  The Board dismissed the applicant’s appeal after holding an oral hearing on 8 March 2021, during which the applicant was represented by a lawyer assigned by the Duty Lawyer Service.

4.By a Form 86 filed on 19 September 2022, the applicant applied for leave to judicially review the Board’s decision.  The application was late by almost 9 months[7].  He did not put forward any grounds for seeking relief in his Form 86 but stated in his supporting affirmation that the Board’s decision was unfair and unreasonable.

5.The Judge heard his application at an oral hearing on 19 May 2026. By a Form CALL-1 dated 23 July 2026, the Judge refused to grant extension of time and dismissed his application.  In gist, the Judge did not accept the applicant’s explanation for the significant delay, finding that the applicant could have taken prompt action to pursue the intended challenge while serving his prison sentence.  The Judge further rejected the applicant’s complaint that the Board’s decision was unfair and unreasonable, holding that the applicant failed to show any error of law, procedural unfairness or irrationality in the Board’s decision. 

Appeal to this Court

6.On 27 July 2026, the applicant filed a Notice of Appeal against the Judge’s decision.  The grounds of appeal stated that the applicant’s life remained in danger and the applicant would face mishap if refouled, and requested for a review of the Judge’s decision.  

7.The appeal was listed for hearing on 23 September 2026.  Despite directions given by the Court, the applicant did not lodge any written submissions.  He was thus deemed to have waived his right to make submissions and the scheduled hearing was vacated pursuant to the directions of the Court. We have therefore proceeded to determine the appeal on the basis of the available documents and materials.  

Discussion

8.In assessing the merits of the appeal, we 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.

9.In the present case, the Board found no significant concerns about the applicant’s credibility and considered that he had provided an essentially truthful and accurate account of the past events as to his involvement with the Chand Group[8]. Regarding the future risk of harm from the Chand Group, the Board was prepared to accept that at the time he left Nepal in March 2019, the applicant was at some risk from the Chand Group as a perceived deserter and/or potential informant.[9] The Board, however, found there had been no further attempt to trace him and the country-of-origin information (“COI”) showed a significant change in the political situation in that consequential upon a peace agreement, the Chand Group had renounced violence, the government had ended the ban, and cadres in custody who abandoned armed struggle were released and charges were dropped. In this context, the Board found no basis for the Chand Group to target the applicant.[10]  Regarding the future risk of harm from the Nepalese government, the Board was not satisfied that the applicant would face any risk of harm from the Nepalese authorities in connection with his Chand Group involvement, whether actual or imputed, given the applicant’s concession at the hearing that he had never been threatened by the Nepalese government.[11]  The Board consequently considered that it was unnecessary to consider issues of state protection or internal relocation,[12] and concluded that the applicant’s claims were not made out on any of the applicable grounds.  

10.These findings of fact and assessments of risk are open to the Board based on the evidence it received, the relevant COI, and for the reasons it gave. As found by the Judge, the applicant’s complaint that the Board’s decision was unfair and unreasonable is no more than a general assertion that is not supported by any particulars.  We also agree with the Judge that the applicant failed to show any reasonably arguable public law error in relation to the Board’s decision. It is clear from its decision that the Board’s assessments on the past events and the future risk of harm were reached after full consideration and careful analysis of the applicant’s evidence and the COI. 

11.It follows that the applicant’s assertion in the Notice of Appeal that he will face danger and mishap if refouled cannot be sustained in light of the Board’s specific finding that the political risk landscape had changed fundamentally by the peace agreement reached between the Chand Group and the Nepalese government, a finding that was supported by the COI.

12.The applicant has not identified any error in the decision of the Judge or advance any viable ground of appeal against the Judge’s decision, including the rejection of his explanation for the serious delay. We are satisfied that the Judge gave proper and adequate reasons for his conclusion that there was no satisfactory explanation for the delay and the intended judicial review has no prospect of success.

13.For the above reasons, the applicant’s appeal has no merits. Accordingly, we dismiss the appeal.

The applicant, unrepresented, acted in person.

[1] [2026] HKCFI 3971

[2] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.

[3] This refers to risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[4] This refers to the 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.

[5] This refers to the risk of being arbitrarily deprived of life under article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[6] https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2022/HCAL000962_2022_files/the_Board's_Decision.pdf

[7] Order 53 rule 4(1) of the Rules of the High Court Cap.4A provides that an application for leave to apply for judicial review should be made promptly and in any case within three months from the date when grounds for the application first arose.

[8] §§144 to 149 of the Board’s decision

[9] §158 of the Board’s decision

[10] §§159 to 162 of the Board’s decision

[11] §§157 and 165 to 169 of the Board’s decision

[12] §171 of the Board’s decision