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HCAL 1279/2020
[2025] HKCFI 3152
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1279 of 2020
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BETWEEN
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Khatri Pramod |
Applicant |
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And |
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
Putative
Respondent |
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And |
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Director of Immigration |
Putative |
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Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following;
Order by Deputy High Court Judge (Non-refoulement Claims) Val Chow:
1. Form 86 be amended on the court’s own motion as follows:-
a. the Torture Claims Appeal Board / Non-refoulement Claims Petition Office be named as the Putative Respondent; and
b. the Director of Immigration be named as the Putative Interested Party.
2. The application for leave to apply for judicial review be dismissed.
Observations for the Applicant:
Introduction
1. By Form 86 filed on 24 June 2020 (the “Form 86”), the Applicant applied for leave to apply for judicial review (the “Leave Application”) against the decision of the Torture Claims Appeal Board / Non‑refoulement Claims Petition Office (the “Board”) dated 10 June 2020 (the “Board’s Decision”).
2. In the Form 86, the Applicant has named both the Board and the Director of Immigration (the “Director”) as the proposed respondents. As it is trite that the Board should be the proposed respondent whereas the Director should be the proposed interested party, I make an order to amend the Form 86 accordingly on my own motion.
3. The oral hearing of the Leave Application (“Hearing”) took place before me on 15 July 2025 and the Applicant attended in person.
Background
4. The Applicant’s background, the basis and history of his claim and the arguments he advanced had been set out in details in the Board’s Decision, and it is not necessary for me to repeat the same here. The hyperlink to the Board’s Decision is included below[1] for reference. In short, the Applicant fears that he will be seriously harmed or killed by Maoist militants if he returns to Nepal.
Discussion
5. It is trite law that determination of the merits of a non-refoulement claim is essentially within the remit of the Director and the Board, who are the primary decision-makers in the evaluation of the evidence based on the materials available to them. A court will not usurp their primary decision-making role in a judicial review, which is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh in the absence of any legal error. A finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.
6. Leave application of this sort is intended to be a filtering process and elaborate reasons are not necessary (see Re Zunariyah [2018] HKCA 14, at §23). Hence, I shall only state my reasons briefly.
7. In the Form 86, the Applicant did not provide any grounds in support of the Leave Application.
8. In the supporting affirmation, the Applicant merely claimed that the Board’s Decision disregarded the danger and threats faced by him should he return to Nepal.
9. At the Hearing, the Applicant confirmed with me that he had nothing else to add to his Leave Application.
10. Having examined the Board’s Decision with anxious scrutiny, I do not find any error of law, procedural unfairness or irrationality. There is nothing to indicate that the Board had failed to take into account any relevant matters or that it had taken into account irrelevant matters.
11. The Board’s Decision was comprehensive with adequate reasons provided for its findings. In particular, the Board was plainly correct in finding that there was no evidence of any real risk of any form of serious harm, given that the Maoist Party has since become an established political party such that it would no longer be necessary to compel the Applicant to join its ranks by threats of violence. In any event, the Applicant has been out of Nepal since 2009, so the risk of danger to him is immaterial if he returns to Nepal (§§28-29 of the Board’s Decision).
12. In the circumstances, the Board’s Decision satisfies the enhanced Wednesbury test and is not Wednesbury unreasonable or irrational.
13. In short, I am not satisfied that the Applicant’s intended challenge of the Board’s Decision is reasonably arguable with any realistic prospects of success. Accordingly, I refuse to grant leave for judicial review.
Conclusion
14. In the premises, I make an order that the Form 86 be amended as described above and the Leave Application be dismissed.
Dated the 1st day of August 2025
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( Edison Ho )
for Registrar, High Court
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Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted
(Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave
(Order 53, rule 6(5)).
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Sent to the Applicant
on 01/08/2025
Khatri Pramod
Applicant’s ref. no:
Nil |
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 01/08/2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM935/15/2/83/N93
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 762/14 (formerly RBCZ/1830/09)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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