GURUNG AASHIK v. TORTURE CLAIMS APPEAL BOARD

HCAL 344/2025

[2026] HKCFI 3991

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 344 OF 2025

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 / the Applicant being absent in open court;

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 34-year-old national of Nepal who first arrived in Hong Kong in 2013 and upon subsequently married a local resident that he was allowed to stay on a dependent visa subject to annual renewal but which dependent visa eventually expired in 2019 upon the dissolution of his marriage, whereupon he was allowed to stay only as a visitor up to 26 July 2019 when he did not depart and instead overstayed, and was arrested by police more than 5 years later on 2 August 2024. After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim for protection on the basis that if he returned to Nepal he would be harmed or killed by his creditors for failing to repay his debts. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Rupandehi, Nepal. After leaving school he continued to reside with his parents, and in 2013 he travelled to Hong Kong as a visitor and subsequently married a local resident whereupon he was allowed to remain on a dependent visa subject to annual renewal, during which he worked in the construction sites to make his living.

3.  In 2017 in order to pay for his father’s medical expenses for his kidney disease, his mother borrowed loans in the Applicant’s name from 2 local money-lenders in Nepal, and for which the Applicant agreed to remit money from Hong Kong to her to repay by monthly instalments with interests.

4.  However, after his marriage ended in divorce in 2018 in Hong Kong which led to his dependent visa not being renewed by the Immigration Department that he was not allowed to undertake any unauthorized employment in Hong Kong, and hence was unable to remit any money to his mother in Nepal for repayment of his loans that his creditors had threatened to kill him upon his return to Nepal.  

5.  As a result the Applicant was afraid to return to Nepal and therefore overstayed in Hong Kong since July 2019, and upon his subsequent arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 26 September 2024 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

6.  By a Notice of Decision dated 31 October 2024 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“Persecution Risk”).

7.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from his creditors upon his return to Nepal as low due to the absence of or low intensity and frequency of past ill‑treatment from them, that there is no evidence of any real intention of his creditors to seriously harm or kill him other than to press him to repay his loans, that in any event these were private monetary disputes between him and his creditors without any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Nepal with a large population of 31 million people spread across a vast territory of more than 147,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied young adult with working experience to move to other areas of the country away from his home district in large cities such as Kathmandu or Patan where it would be difficult if not impossible for his creditors to locate him.

8.  On 13 November 2024 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 14 January 2025 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 21 January 2025 his appeal was dismissed by the Board which also confirmed the Director’s decision.

9.  In its decision[1] the Board accepted the Applicant’s claim of fear of harm from his creditors over his outstanding debts but found no reliable evidence of any real intention of his creditors to seriously harm or kill him other than to press him to repay his debts, and that in any event these were private monetary disputes between him and his creditors only without any official involvement that state or police protection would be available to the Applicant upon his return to Nepal as well as reasonable internal relocation alternatives for him to move safely to other parts of the country away from his home district without any risk of being located by his creditors that his claim for non‑refoulement protection failed on all applicable grounds. 

10.  On 6 February 2025 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form or his supporting affirmation of the same date in which he just stated that he is not satisfied with the decision but without putting forth any proper ground for his intended challenge, nor did he request any oral hearing for his application. As such, and in the absence of any error of law or irrationality or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge of the Board’s decision.

11.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: 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.

12.  In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decisions that the risk of harm in his claim if real is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Nepal, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.                

13.  In the premises, and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

14.  Moreover, the Applicant has recently in writing requested to withdraw his application as his issues in his home country have been resolved that he now wants to return to Nepal as soon as possible.

15.  As I am for the given reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of his latest confirmation of no more issue for him to return to his home country, I accordingly dismiss his leave application.

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