SHAHI BISHAL v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

1.   Extension of time to apply for leave for Judicial Review be refused; and

2.   Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 11 February 2026 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-refoulement Petitions Office (the “Board”) dated 1 February 2024 dismissing his appeal against the decision of the Director of Immigration in his Notice of Decision refusing his application for non-refoulement protection (the “Notice”).

2.  The Applicant is a Nepalese national.  He obtained a dependent visa in 2016 to join his wife in Hong Kong.  He borrowed two million Nepalese rupees (“NPR”) from a moneylender for the purpose of settling in Hong Kong against the pledge of his land which was worth NPR 2 million at the time.  The moneylender was a local leader of the Rupandehi of the Communist Party of Nepal (Maoist) and a friend of his father.  The loan was lent on a friendly basis for a term of five years and interest free.  The Applicant came to Hong Kong on 10 January 2017.  In October 2017, the moneylender made demands through the Applicant’s parents in Nepal for repayment of half of the loan by 2018.  The Applicant could not pay.  The matter dragged on and turned into a dispute in 2021.  The moneylender demanded the Applicant to return to Nepal to execute documents to effect the seizure of the pledged land.  At that time, the value of the land had increased five-folds.  The Applicant did not return to execute the documents.  The dispute escalated with more frequent demands and death threats by the moneylender and his men.  The Applicant’s father was injured in one of those occasions and passed away.

3.  In the meantime, the Applicant committed burglary in Hong Kong on 19 April 2022 and was sentenced to 16 months’ imprisonment on 25 May 2023.  Obviously, by reason of his conviction, his dependent visa was not extended upon its expiry on 10 January 2022.  He lodged a non-refoulement claim in September 2023.  In due course, his claim was assessed on all four applicable grounds under the Unified Screening Mechanism (the “USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4]. His claim was rejected by the Director’s Notice.  His appeal against the Notice was dismissed by the Board’s Decision on 1 February 2024.  He now applies for leave to apply for judicial review of that Decision.  

4.  There are two preliminary matters raised by this leave application.  First, the Court received on the afternoon before the hearing a Memorandum of Notification of an Application for Legal Aid by the Applicant (the “Memorandum”).  Second, the leave application was filed more than two years after the date of the Decision sought to be reviewed.  In the absence of a reasonable explanation for the inordinate delay, leave may be refused “however strong the complaint might otherwise be”, see Po Fun Chan v Winnie Cheung [5], per Litton PJ.  In the circumstances, the Court has serious doubts about the motive of the legal aid application and the merits of the leave application. Hence, the Court considered it appropriate, as a measure of good case management, to consider whether the legal aid stay should be lifted notwithstanding section 15 of the Legal Aid Ordinance (Cap 91).

The law and explanation for the late application

5.  The leave application was filed two years and eleven days after the date of the Decision sought to be reviewed.  Pursuant to section 21K(6) of the High Court Ordinance and Order 53, rule 4(1) of the Rules of the High Court, the leave application had not been lodged promptly, being made twenty-one months and eleven days after the date of the Decision sought to be reviewed.  The delay is grossly inordinate.  Extension of time to file the leave application is required.

6.  In AW and Director of Immigration and William Lam[6], the Court of Appeal held that the following factors are relevant in determining whether to grant leave to file an application for leave to apply for judicial review out of time: (1) length of the delay; (2) explanation for the delay; (3) merits of the substantive application; (4) prejudice to the applicant if leave is refused vis-à-vis that to the respondent and public administration if leave is granted; and (5) whether the application raises any questions of general public importance, and whether those questions are likely to have to be resolved by the courts in any event.  Usually, the first three factors, particularly merits, are most crucial and determinative.  If the sum total of these three factors are in favour of granting extension, the court would be more relaxed with the remaining two.  Conversely, if it is against the granting of extension, there is no need to consider the remaining two factors.  However, where an application is many months out of time, leave may be refused “however strong the complaint might otherwise be”, see Po Fun Chan v Winnie Cheung [7].

7.  The Decision was issued on 1 February 2024.  The Applicant did not apply for judicial review until more than two years after the date the Decision was made.  His explanation in his supporting affirmation is that he was released from custody a few days after the Decision was issued. Then he concentrated his efforts to apply for the Hong Kong identity so that he could remain in Hong Kong.  He thought if he could obtain an identity card, he would not need non-refoulement protection.  Be that a genuine mistake of law or otherwise, he had received the Decision in time, he knew his appeal had been dismissed and he made a conscious decision not to challenge the Decision.  He raised the non-refoulement claim in September 2023 after he had problem renewing his dependent visa.  He must realise that the claim and his dependent visa are separate matters which arose at different times.  Yet, he made a conscious decision not to apply for review.  His explanation of mistake is not genuine.  Even if it were, it is not a reasonable one.

8.  Next, he said he had no money to pay the application fee.  He said he had no income and his wife had to look after their children and could not take up employment.  It was only in November 2025 when he saw his “claim solicitor” who agreed to pay the filing fee for him that he could file the leave application.  This explanation could not stand with his explanation that he deliberately took no steps to apply for judicial review before November 2025 because of his belief that he could apply and obtain a Hong Kong identity card.  He had planned to immigrate to Hong Kong.  He had borrowed NPR 2 million to settle in Hong Kong.  He had family in Hong Kong and parents and siblings in Nepal.  He and his family had come to Hong Kong for ten years. He must have resources or access to resources for them to live in Hong Kong. The Court gives no credence to his allegation.

9.  The Court is not satisfied that the explanations are genuine or reasonable.  The delay is so inordinate as to be beyond the limits which any court could tolerate.  For this reason alone, the leave application may be refused without considering the other three factors.  But, before doing so, the Court shall consider the issue of legal aid stay.

Explanation for the late legal aid application

10.  The Memorandum was received on the afternoon before the date of hearing of the leave application.  The Court accepts the Applicant’s claim that he had applied for legal aid a week before, ie on about 3 March 2026, but he had not submitted all necessary documents and it was until a week later that he was able to provide all the documents that the Memorandum was issued.  The Court also understands that it was not until he had decided to apply for judicial review that he considered it necessary to seek legal aid. In that sense, he applied reasonably promptly after he made his leave application.  But reasonableness has to be measured against the totality of the factual circumstances.  Putting aside his very inordinate delay in making his late leave application, having filed his leave application on 11 February 2026, he did not take any steps to seek legal aid on the same day or promptly.  He did not prosecute his legal aid application until three weeks later, or one week before the hearing, ie on or about 5 March 2026 or not until he received the notice of hearing.  The urgency in this case was created by his being put in custody pending execution of the removal order and his habeas corpus application.  The Court is not satisfied that he had prosecuted his legal aid application with the promptness reasonably required or expected of him by the circumstances.  The delay is prima facie evidence of the absence of a bona fide intention to seek legal assistance and his deliberate attempt to delay the processing of his leave application for the purpose of delaying his deportation.

Need for legal representation

11.  The Applicant argued that he is a layman with no knowledge of the law.  He said he had no financial resources to instruct a private lawyer and need legal assistance.  He need legal assistance because he had a few points to support his claim for non-refoulement protection which had not been dealt with by the Board.  When asked for particulars of those “few points”, he said it was the fact that he was in prison in 2018.  He also said he wanted to submit documents, but could not do so as he is now in custody.  The Board knew he was in prison custody in 2024 for burglary, but had no knowledge about his imprisonment in 2018.  The imprisonment could have nothing to with the threat or risk of harm he received in Nepal.  He could not elaborate.  He just wanted the Court to consider everything.  He gave no particulars of the documents he wanted to obtain and produce.  As the leave is not a re-trial, this Court will not consider new evidence which had not been before the Board. In any event, there was no reason why he did not or could not have obtained those documents during the past two years when he was not in custody.  This claim is just a convenient excuse.

Conclusion

12.  For the above reasons, the Applicant’s leave application is refused.

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

Form CALL-1