KC AMAR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 3571/2019

[2025] HKCFI 1707

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3571 of 2019

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

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

(1)  Form 86 be amended, naming only the Torture Claims Appeal Board/ Non-refoulement Claims Petition Office as the Putative Respondent and the Director of Immigration 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 2 December 2019, the Applicant applies for leave to apply for judicial review (“the Leave Application”) of the decision of the Torture Claims Appeal Board/ Non‑refoulement Claims Petition Office (“the Board”) dated 14 November 2019 (“the Board’s Decision”) confirming the decision of the Director of Immigration (“the Director”) dated 24 September 2018 (“the Director’s Decision”), which rejected his non-refoulement claim on all applicable grounds (“the Grounds”) under the Unified Screening Mechanism (USM).

2.  On my own motion, I have amended Form 86, correctly naming only the Board as the proposed respondent and the Director rather than the Board as the proposed interested party.

Background

3.  The material facts of this case, including the Applicant’s personal background, the incidents alleged to show that he would be harmed or killed by the Hindus of Shivalaya, or sentenced to imprisonment, for slaughtering a cow in Nepal, and the immigration and procedural history, etc. have been set out comprehensively in the Board’s Decision. It is not necessary to repeat them all over again. For completeness’ sake, reference can be made to the Board’s Decision, the hyperlink to which is included below[1]. Unless otherwise specified, I will also adopt the Board’s abbreviations and descriptions herein.

Discussion

4.  I have considered the Board’s Decision with rigorous examination and anxious scrutiny, applying an enhanced standard as required by law owing to the seriousness of the issues at hand. I am satisfied that the Board had correctly set out the burden of proof and standard of proof, the law and key legal principles relating to the Grounds under the USM, and observed a very high standard of fairness.

5.  The Board was not satisfied, after going through all the evidence adduced by the Applicant and applying the relevant law and legal principles relating to the issues and the Grounds, that there was, or there was reliable, evidence to show the following matters (see §43 of the Board’s Decision):

(1)  The Hindus of Shivalaya were a threat to him. He was never physically confronted by any of them. After he had surrendered to the Myagdi police in around mid-2014, he had no longer received any further threats from them. It would be surprising that they would still continue today to wish to harm or kill him. In addition, given that they had never physically confronted him in the past, it was mere speculation that they would harm or kill him if he were to return to Nepal now.

(2)  The Nepali authorities had any personal interest. There was nothing to suggest that the police were ever interested in the Applicant until he surrendered to them. In any event, the police would not be prosecuting him in relation to the criminal offence of slaughtering a cow. He had already appeared before the courts and had regularly reported to the Myagdi police after being granted bail without any issue. This suggested that he had been treated by the authorities in a fair manner all along.

(3)  The Applicant would be treated unfairly by the Nepali authorities if he were to return.

(4)  The Applicant had suffered physical suffering as a result of the beating incident of the requite severity.

(5)  The state of Nepal was unwilling to help the Applicant for a Convention reason.

6.  Applying these findings to the individual grounds, the Board concluded as follows:

(1)  The Applicant had failed to establish that he would be subjected to persecution for a Convention reason if he were returned to Nepal. His fear was not well-founded (see §§45-68, 93 of the Board’s Decision).

(2)  It had not been shown that there would be a real risk or substantial grounds for believing that he would be subjected to a real risk of prohibited treatment – namely, the government of Nepal would deprive him of life (see §§69-70, 95 of the Board’s Decision).

(3)  The evidence adduced by the Applicant disclosed no substantial grounds for believing that he would be subjected to a real risk of prohibited treatment – namely, torture and CIDTP (see §§71-76, 95 of the Board’s Decision).

(4)  The elements for Torture risk had not been satisfied (see §§77-92, 96 of the Board’s Decision).

7.  The assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation was primarily within the province of the Board. It was entitled to make evaluations based on the evidence available and to decide the weight to be given to them. It is well-established that the role of the Court in a judicial review is not to provide a further avenue of appeal: 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, etc.

8.  The Applicant has not shown any error of law, procedural unfairness, or irrationality in the Board’s Decision for the Court to intervene. It is inadequate for him to merely assert that the Board’s Decision was “unfair and unreasonable”, hoping that the Court would reopen the Board’s findings.

9.  I am not satisfied that the Applicant’s intended challenge of the Board’s Decision is reasonably arguable with any realistic prospects of success: see Peter Po Fun Chan v Winnie Cheung & Another (2007) 10 HKCFAR 676.

Conclusion

10.  For these reasons, I make an order that Form 86 be amended as described above and the Leave Application be 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