RE SHRESTHA SHYAM KUMAR

CACV 474/2024, [2025] HKCA 412

On Appeal From [2025] HKCA 213

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 474 OF 2024

(ON APPEAL FROM HCAL NO. 1470 OF 2019)

________________________________

________________________________

______________________

JUDGMENT

______________________

Hon H. Au-Yeung J (giving the Judgment of the Court) :

A.  BACKGROUND

1.  On 5 March 2025, this Court (Cheung JA and H. Au-Yeung J) handed down a judgment dismissing the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan given on 7 November 2024 refusing leave to the applicant to apply for judicial review. The applicant had sought to review the decision of the Torture Claims Appeal Board (“the Board”) dismissing his appeal from the decision of the Director of Immigration rejecting his non‑refoulement claim.

B.  THE PRESENT APPLICATION

2.  By a Notice of Motion filed on 17 March 2025, the applicant applied for leave to appeal to the Court of Final Appeal. As far as his grounds of appeal are concerned, he contends that:

(1)  This Court has made an error in law;

(2)  The Court has ignored overwhelming evidence which is in his favour;

(3)  The Court is biased;

(4)  The Court’s decision is unfair.

3.  In his written submissions dated 17 March 2025, he repeated his argument that the Board’s decision was unreasonable or irrational, and that the Board had failed to give sufficient reason for dismissing his appeal. He further alleged that the Board had erred in law and acted unfairly.

C.  DISCUSSION

4.  Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap 484, Laws of Hong Kong) provides that an appeal shall lie to the Court of Final Appeal at the discretion of the Court of Appeal or the Court of Final Appeal, from any judgment of the Court of Appeal in any civil cause or matter, whether final or interlocutory, 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.

5.  In the present application, the applicant has simply failed to identify any question of great general or public importance for the Court of Final Appeal to determine. Nor is any such question apparent to us from the matters he has raised.

6.  Further, neither the Notice of Motion nor the written submissions identify any supposed error in our Judgment. His argument that this Court has erred in law is a bare assertion which is not particularised.

7.  We also do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b).

D.  DISPOSITION

8.  To conclude, the matters advanced by the applicant do not constitute valid grounds for granting leave to appeal to the Court of Final Appeal. The Notice of Motion filed on 17 March 2025 is therefore dismissed.

The Applicant was unrepresented

CACV 474/2024, [2025] HKCA 213

On Appeal From [2024] HKCFI 3091

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 474 OF 2024

(ON APPEAL FROM HCAL NO. 1470 OF 2019)

____________________

____________________

____________________

JUDGMENT

____________________

Hon H. Au-Yeung J (giving the Judgment of the Court) :

1)  The appeal

1.  This is an appeal brought by the applicant against the decision of Deputy High Court Judge Bruno Chan (‘the Judge’) of 7 November 2024 (‘the Decision’) by which he refused to grant the applicant leave to apply for judicial review.

2.  This appeal was originally scheduled to be heard on 25 February 2025.  However, since the applicant has failed to lodge written submission by the stipulated time pursuant to the directions of the Court dated 31 December 2024, pursuant to paragraph 4 thereof, the hearing of the appeal was vacated and the Court will now deal with this appeal on paper. 

2)  Background

3.  The applicant is a national of Nepal.  He entered Hong Kong illegally from the Mainland on 5 October 2015, and made a non-refoulement claim on 23 December 2015.

4.  The basis of the applicant’s non-refoulement claim is that he would be harmed or killed by certain local supporters of a political party known as Madhesi because the applicant had provided information concerning activities of the said political party to the police.

3)  The Director’s Decision

5.  The Director of Immigration (‘the Director’) decided against the applicant’s non-refoulement claim on 24 May 2018, and rejected the applicant’s claim on all the applicable grounds (‘the Director’s Decision’).

4)  The Board’s Decision

6.  The applicant appealed/petitioned against the Director’s Decision to the Torture Claims Appeal Board (‘the Board’). 

7.  After a hearing held on 29 March 2019, the Board dismissed the applicant’s appeal on 26 April 2019 (‘the Board’s Decision’).

5)  Decision of the Judge

8.  The applicant then filed Form 86 and affirmation in support and applied for leave to apply for judicial review.

9.  The Judge held that all of the applicant’s purported grounds for judicial review are bare and vague assertions containing a few key words or phrases but without any necessary or relevant particulars or elaborations as to how they applied to his case or how the Board had erred in its decision, or in any way was the Board’s Decision unfair or unreasonable. As such, none of the assertions or grounds relied on by the applicant was reasonably arguable for his intended challenge.

6)  Grounds of appeal

10.  In the applicant’s Notice of Appeal, he stated that:-

“[…] the grounds of this appeal are that the Plaintiff will face hardship if he is to return back to his home country and that the Torture Claims Appeal Board has significantly relied on the source of news which is not officially recognized, or it is simply hearsay. They have also relied on some cases which are outdated considering the dramatic changes. The lack of credible source of information has resulted in them making groundless speculations.”

7)  Our view

11.  It is well established that the Court of Appeal would only reverse the decision of the Judge if it could be demonstrated that there were errors in law, that the Judge failed to take into account relevant matters, or the decision was otherwise plainly wrong : see United Muslim Association of Hong Kong v Yusuf Yu[2018] HKCA 451 at [38] and [39].

12.  An appeal against refusal of leave for judicial review is not an occasion for the applicant to regurgitate arguments already advanced.  It is incumbent on the applicant to point out with sufficient particularity the errors allegedly committed by the Judge in assessing the Board’s Decision.  

13.  Since none of the grounds relied on by the applicant shows that the Judge has made any error referred to above, we are of the view that the applicant’s appeal is without merits. 

14.  The appeal is dismissed accordingly.