BHANDARI, KRISHNA PRASAD v. TORTURE CLAIMS APPEAL BOARD

HCAL 3553/2019

[2025] HKCFI 3866

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 3553 OF 2019

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

	consideration of the documents only; or
	consideration of the documents and oral submissions by the applicant in open court;

1.  On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board” and the name of the putative interested party be amended to “Director of Immigration”.

2.  The applicant’s application to withdraw the application for leave to apply for judicial review be refused.

3.  The applicant’s application for leave to apply for judicial review be dismissed.

Observations for the applicant:

The Leave Application

1.  By way of Form 86 dated and filed on 29 November 2019, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board (“the Board”) dated 26 November 2019 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003553_2019_files/the_Board's_Decision.pdf

2.  The Board found that the applicant was not entitled to non-refoulement protection in Hong Kong on any of the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board refused the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 13 July 2018 and confirmed the same.

Amendments

3.  The applicant wrongly spelt the Board’s name as “TORTURE Claim appeal Board” and named the Board as both the proposed respondent and the putative interested party in Form 86, when the Director should be the putative interested party.

4.  Thus, on this court’s own motion, the name of the putative respondent is amended to “Torture Claims Appeal Board” and the name of the putative interested party is amended to “Director of Immigration”.

The applicant’s case

5.  It is not necessary for this court to repeat the details of the applicant’s case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above.

6.  In sum, the applicant claimed for non-refoulement protection because he feared that, if refouled to Nepal, he being an active member of the Nepali Congress Party (“NCP”) would be harmed or killed by supporters of the United Communist Party Maoist (“Maoists”) in the jungle or Maoists in his locality.

Withdrawal at the oral hearing

7.  The applicant requested for an oral hearing of the Leave Application and his case was heard on 21 August 2025.

8.  The applicant told this court that he had previously informed the Director that his problem in Nepal had been resolved and he wanted to return home. In any event, he also applied to withdraw the Leave Application at the oral hearing. The reason he gave for the withdrawal application was that it would be safe for him to return to his home country as his problem there had been resolved.

9.  There is no evidence to show that the applicant made the above withdrawal application other than out of his own volition. With this withdrawal application, it is clear that the applicant no longer wishes to proceed with the Leave Application.

10.  The Court of Appeal had held in Re Manik Md Mahamudun Nabi [2022] HKCA 471 that:-

“The applicant on his own motion applied to the Court to withdraw his application for leave to apply for judicial review. The Judge acceded to his application, whereupon there was nothing outstanding in the action. The Judge was correct to conclude the action by ordering a dismissal of the application instead of leaving the action at large.”

11.  Thus, this court should deal with the Leave Application instead of leaving the action at large by granting leave to withdraw to the applicant.

Grounds for judicial review

12.  The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).

13.  The applicant did not advance any ground for the intended judicial review in Form 86, nor in the supporting affirmation dated 29 November 2019. He merely stated in the affirmation that he was not satisfied with the Board’s Decision as his life would not be safe in his country.

14.  The applicant did not advance any ground at the oral hearing before this court either, as he just wanted to return to his own country.

Discussion

15.  The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision and intervene by way of judicial review only for errors of law, procedural unfairness, or irrationality (see Nupur Mst v Director of Immigration [2018] HKCA 524).

16.  Thus, despite the fact that the applicant did not advance any valid ground for the intended judicial review, this court will scrutinize the Board’s Decision for any errors of law, procedural unfairness or irrationality.

17.  The applicant was afforded an oral hearing before the Board on 18 September 2019 and the applicant was present. Thus, the applicant did have the opportunity to present his case to the Board in person.

18.  The Board gave detailed analysis and reasoning for its conclusion that the applicant’s claims and evidence were not truthful. His knowledge of NCP was shallow and nowhere near the level that could be expected of a person who had been an active member and participant in political activities and programmes for many years. He admitted at the Board’s hearing that he was not a member of NCP but more a general party worker. The Board did not accept that he was an active member of NCP or a member of NCP or an active participant or supporter of NCP.

19.  Because of the significant inconsistencies as to whether the applicant started the fight during the programme at the school ground and whether the Maoists were admitted to hospital, the Board found that the applicant was not involved in a fight with the Maoists. Further, the Board did not accept that the Maoists targeted him, came to his home and attacked him, or that he was injured and hospitalized for ten days at all.

20.  Because of the lack of credibility in the claims and the lack of documentary evidence, the Board did not accept that the Maoists in the applicant’s locality or the Maoists in the jungle would harm him. The Board also did not accept that the police or the Nepalese authorities would withhold protection from the applicant because Maoists were involved.

21.  Hence, the Board concluded that the applicant would not face any of the proscribed forms of harm should he return to Nepal.

22.  Although the Board did not consider the viability of internal relocation for the applicant, it is a well-recognised principle that the decision-maker only needs to consider internal relocation if the applicant has established that he qualifies as a refugee pursuant to Article 1A(2) of the Refugee Convention (see Robinson v SSHD & Anor [1997] EWCA Civ 3090, dated 11.7.1997). In other words, internal relocation only arises if the applicant has established a real risk of persecution in his home area (see Gardi v SSHD [2002] 1 WLR 2755).

23.  As it is the Board’s finding that the applicant had no real risk of any of the proscribed forms of harm, it is not necessary for the Board to consider internal relocation.

24.  The assessment of evidence, country of origin information and risk of harm was primarily within the realm of the Board. The Board was entitled to make its own decision. This court finds nothing wrong or unreasonable in the way the Board reached its decision.

25.  Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM, the burden of proof and the standard of proof. The Board also correctly identified the issues and observed a very high standard of fairness. This court could detect no errors of law, procedural unfairness or irrationality in the Board’s Decision. The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision.

26.  Thus, there is no merits in the Leave Application at all.

27.  Moreover, as the applicant had confirmed at the oral hearing before this court that it would be safe for him to return to his home country, it is clear that he no longer needs non-refoulement protection and the Leave Application serves no practical purpose.

28.  It is well established that the court may exercise discretion not to grant a remedy on judicial review if it would serve no practical purpose, where it may have become otiose or pointless to grant a remedy because the relevant detriment to the applicant has been removed (see AW v Director of Immigration and William Lam, CACV 63 of 2015).

29.  Even assuming that there were errors of law, procedural unfairness, or irrationality in the Board’s Decision and the case were remitted to the Board for reconsideration, there would simply be no more basis for the applicant to claim non-refoulement protection as it was no longer unsafe for him to return to his own country. The Board should assess the risk of the applicant at the time of the proceedings, taking account of information that has come to light to ensure that it is able to make a “full and up-to-date assessment” of the current situation (see Ubamaka Edward Wilson v Secretary for Security and Another (2012) 15 HKCFAR 743).

30.  It is therefore otiose and pointless to grant leave to the applicant to proceed with the intended judicial review, and hence the Leave Application ought to be dismissed.

Conclusion

31.  For reasons aforesaid, the application to withdraw the Leave Application is refused and the Leave Application is dismissed.

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