UDAYA THAPA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2423/2019

[2025] HKCFI 372

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2423 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.  The Form 86 is amended on the court’s own motion; and

2.  The Leave Application be dismissed.

Observations for the Applicant:

Introduction

1.  By prescribed Form 86 filed on 21 August 2019, the applicant applied for leave to apply for judicial review (“Leave Application”). The intended judicial review was against the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) dated 29 July 2019 (“Board’s Second Decision”) dismissing the applicant's appeal against a decision of the Director of Immigration (“Director”) dated 18 April 2017 (“Director’s Second Decision”) rejecting the applicant’s non-refoulement claim.

2.  Apart from the subject Decisions stated in the preceding paragraph, there are also two earlier decisions respectively of the Director dated 18 August 2015 (“Director’s First Decision) and of the Board dated 13 February 2017 (“Board’s First Decision”). They will be further referred to when discussing the background of this case.

3.  In the Form 86, the applicant named the Board and Director as the proposed respondent(s) as well as the interested parties. As the Board should have been the proper proposed respondent and the Director the proper proposed interested party, the Form 86 will be amended accordingly on the court’s own motion.

4.  As the applicant had requested for a hearing of the Leave Application, this court held a hearing on 17 December 2024. The applicant attended in person.

Background

5.  The background as taken from the two respective decisions of the Director and the Board referred to above can be briefly stated as follows.

6.  The applicant is a national of Nepal. The applicant’s case was that he came to Hong Kong on 12 April 2014 as a visitor. After the expiry of his visitor’s visa on 19 April 2014, the applicant did not depart. He was arrested on 19 May 2014 by the police for overstaying. On 21 May 2014 and 31 March 2015, the applicant lodged a non-refoulement claim, which was considered under all applicable grounds other than BOR 2 risk[1] - the risk of torture[2], BOR 3 risk[3] and persecution risk[4] under the USM.[5] The claim was based on a fear that if refouled, he would be harmed or killed by a local villager called Sher Bahadur consequent on the applicant’s inability to pay compensation for the destruction of his house after the applicant’s father had accidentally burnt it down in the beginning of 2012.

7.  Around two months after the accident, Sher Bahadur came to his house to demand the family to pay compensation for the house, and started assaulting the applicant when he was told that the family had no ability to pay the compensation he demanded. He was wounded and taken to the village clinic. Since Sher Bahadur was a senior member of the Nepali Congress Party, the applicant knew that it would have been futile to report the matter to the police. Another two months later, the applicant claimed that the father could not stand the pressure of the threats and died by suicide. Afterwards, the applicant moved out of the village and stayed with a friend in Kathmandu, and eventually came to Hong Kong to avoid threats by Sher Bahadur.

8.  In the Director’s First Decision, the Director decided against the applicant’s claim on all applicable grounds other than BOR 2 risk. The Director assessed the claimed risk of ill-treatment to be small, that the matter between the local villager and the applicant was solely a money dispute, and there was no evidence suggesting that the applicant was a target of the government. After having considered the country of origin information reports (“COI”), the Director was satisfied that state protection was available and that internal relocation alternatives were available and reasonable. Hence, the applicant’s appeal to the Board against the Director’s First Decision.

9.  On 19 July 2016, the applicant attended a hearing before the Board. During the hearing, the applicant adopted the contents of his Non-refoulement Claim Form (“NCF”) and the record of interview as his evidence. In the Board’s First Decision, the Board found that there were a number of material discrepancies between the contents of his NCF and evidence such as the cause of his father’s death, the type of the injuries from the assault. Further, the Board found that the applicant raised the refoulement claim only after he had been arrested for overstaying. Taking into account the applicant’s general lack of credibility, the Board found that the applicant’s appeal failed on all applicable grounds.

10.  After the Board’s First Decision was delivered, on 28 March 2017, the Director wrote to the applicant to invite the latter to submit additional facts relevant to his non-refoulement claim on all applicable grounds including BOR 2 risk. The applicant, however, did not provide any response within the required time of 14 days. In the absence of further information, the Director concluded that the applicant had failed to establish the BOR 2 risk. The applicant appealed to the Board against the Director’s Second Decision on 24 April 2017.

11.  The same constituted Board considered the applicant’s appeal. Having taken into account the requirement of the high standard of fairness, and further that there were no new or additional facts put forward by the applicant, the Board found it unnecessary to hold an oral hearing as no issues had been placed before the Board that needed clarification. After the Board had considered the applicant’s appeal on paper, it concluded that there was nothing in the evidence to show that the applicant was at risk of any BOR 2 harm. The Board further adopted the findings in the Board’s First Decision, and in particular its findings on the applicant’s lack of credibility. The Board dismissed the applicant’s claim against the Director’s Second Decision.

Legal principles applicable to judicial review

12.  As the courts have repeatedly stated, determination of the merits of a non-refoulement claim is essentially a matter for 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.

Discussion and conclusion

13.  The applicant’s Form 86 did not contain any grounds for seeking relief. In his supporting affirmation of the same date, he exhibited a copy of the Board’s Decision and deposed that his problem in Nepal was not solved. At the hearing, this court had asked him whether he had any grounds he wished to submit in support of the Leave Application. The Applicant confirmed that he had no special ground to put forth and only wished this court to know that his situation at home was still dangerous. He added that life in Hong Kong was easier. Since the applicant was acting in person, this court repeatedly asked him what mistake or error he believed the Board had made. He only repeated that he was still in danger if he were re-fouled. It is plain that the applicant had failed to provide any evidence or put forward any grounds to challenge the Board’s Second Decision.

14.  The Board’s Second Decision was arrived at with the benefit of the earlier hearing, in which the Board had the opportunity of examining the applicant’s evidence in great detail. The Board had found that the applicant lacked credibility and his claim was based solely on unsupported assertions, speculation and hearsay evidence. In spite of the decision of the Board to determine the applicant’s appeal against the Director’s Second Decision on paper without an oral hearing, the same constituted Board was familiar with the evidence presented to it in the earlier hearing, and made findings of fact, which the court in a judicial review will not interfere with.

15.  Having rigorously examined the Board’s First and Second Decisions with anxious scrutiny, this court is satisfied that the Board correctly applied the law and the key legal principles relating to all the grounds mentioned above; correctly identified the issues, and observed a very high standard of fairness in the Decisions of the Director and the Board. In the absence of any specific grounds in support of the Leave Application, I find that it was perfectly open to the Board to come to its conclusion that the applicant’s evidence was not credible and that the applicant failed to discharge his burden of proving the asserted fears and risks.

16.  For these reasons, I am not satisfied that the Leave Application is reasonably arguable with realistic prospects of success such that would enable this court to grant leave: see Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

Orders

17.  The Form 86 is amended on the court’s own motion.

18.  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