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HCAL 2647/2019
[2025] HKCFI 3315
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2647 of 2019
BETWEEN
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Adhikari Gupta |
Applicant |
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
Putative Respondent |
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Director of Immigration |
Putative Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following;
Order by Deputy High Court Judge To:
1. Leave to amend the Form 86 be granted; 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 September 2019 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 24 July 2019 and the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 12 July 2018 (the “Notice”). He named both the Board and the Director as the proposed respondents without naming any interested party.
2. The Decision of the Board is reviewable by judicial process but not the decision of the Director in the Notice because there are established statutory procedures of appeal to the Board and the Applicant has invoked those procedures. The Director’s decisions in the Notice was superseded by the Board’s Decision and is no longer susceptible to judicial review: Re Moshsin Ali[1]. The Applicant’s leave application in respect of the Director’s Notice is refused forthwith. Hereunder, the Court considered his leave application in respect of the Board’s Decision only.
3. The Applicant had requested an oral hearing. A hearing was scheduled for him on 4 June 2025 and notice of hearing was sent to him by post on 13 May 2025 to his up-to-date and last known address in Woosung Street obtained from the Immigration Department on 3 April 2025. On the afternoon before the hearing, a court staff attempted to call him on his telephone to remind him of the hearing, but he did not answer the call. The notice of hearing has not been returned through the post. He did not attend the hearing.
4. Out of caution another hearing on 30 June 2025 was scheduled for him and notice of hearing was sent to him by post on 18 June 2025 to his address in Battery Street as stated by him in his Form 86 filed in 2019 six years ago. A court staff also attempted to call him on 27 June 2025 to remind him of the hearing. Again, he did not answer. The notice of hearing has not been returned through the post. He did not attend the hearing.
5. The Court was satisfied that notice of hearing had been duly served on the Applicant on his two addresses. He never informed the court of any change of address. There is nothing to suggest he had not received either of the notices. The Court had tried its best endeavor to bring the hearing to him attention, but he did not appear. Having considered the nature of the application and issues raised, the Decision, the papers, the applicable legal principles and all the circumstances, the Court considered that the leave application may be justly determined on paper without an oral hearing.
Background
6. The Applicant is a Nepalese national. He entered Hong Kong illegally on 11 July 2007. He was arrested by the police on 23 August 2007 and referred to the Immigration Department on 25 August 2007. He made a torture claim under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment on 3 September 2007. His application was rejected by the Director on 25 October 2013. He did not appeal. The Director’s decision became final.
7. On 8 November 2013, he made a non-refoulement claim under the Unified Screening Mechanism (the “USM”). His non-refoulement claim was assessed on all three remaining applicable grounds under the USM, namely: BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4]. His application was rejected by the Director’s Notice. His appeal was dismissed by the Board’s Decision. He now applies for leave to apply for judicial review of that Decision.
The Applicant’s case
8. The following account of the Applicant’s case is mainly based on the information in the torture claim form (the “TCF”) prepared by him with legal assistance and the record of his screening interview in the presence of his lawyer. In gist, he claims, if refouled to Nepal, he will be harmed or killed by members of the Communist Party of Nepal (the “Maoists”) and the Terai Mukti Morcha, now known as Tarai-Madhesh Loktantrik Party (the “Forum”), because he had spoken against them.
9. The Applicant, now aged 42, was born and raised in Narayani Zone, Makwanpur District, Hetauda, Ward No. 8, Kamane, Nepal. He is single. His widowed father and sister are living in Nepal. He had received formal education for 11 years. He worked as a cook in Malaysia from 2006 to 2007.
10. He became an executive member of the Manakamana Club (the “Club”) since 2001 or 2001. The purpose of the Club was to organise social activities for the village where he lived. During 2004 or 2005, Maoists from different areas went to his village to recruit young members. They verbally threatened or even kill those who refused to join them. Because of the threats from the Maoists and for the welfare of the community, the Applicant on behalf of the Club held a public meeting in his village to speak against the Maoists. On the day following the meeting, four to five people went to his parents’ home to look for him. He was not at home. Those people slapped and uttered abusive language to his father. Before leaving, they threatened to kill the Applicant, if he spoke against the Maoists again.
11. From 2004 or 2005 to 2006, the Maoists went to his home every four to five days. Whenever the Maoists came, he would hide. To avoid the troubles, his parents forced him to go to Malaysia. He went to Malaysia in September 2006. After a while, the Maoists stopped visiting his home.
12. He returned to Nepal from Malaysia in May 2007 and lived in his village again. The Maoists did not harm him and he continued to be an executive member of the Club. One afternoon in May or June 2007, three to four men approached him on the street near his home. They invited him to join the Forum, which was a terrorist party split off from the Maoists in 2004. It actively solicited young people to join them. Those men asked him to take part in terrorist activities against the government. He refused. Before leaving, they told him that he had to join them. The Applicant shared his experience with other members of the Club, who had also encountered the same threats. They decided to hold a public meeting to speak against the Forum. On behalf of the Club, the Applicant organised the meeting, which was held about five to six days later.
13. One evening a few days after the meeting, the Applicant was attacked on the street by three to four unknown men for 10 to 15 minutes. They blamed him for opposing the Forum. He almost lost consciousness and could not move. His friends who walked past took him back to his home. His parents then brought him to Hetauda Hospital. He was hospitalised for about three days. After his discharge from hospital, he went to report the assault at the Hetauda Police Station. The police said they would help. When he made inquiries about the progress of the investigation, the police replied that they were still looking for the suspects.
14. In the evening of the next day, his parents told him that eight to ten people had visited his home earlier and they slapped his father and verbally abused his parents. Before leaving, they threatened to kill him if he spoke against the Forum again. Since then, the Forum members kept visiting his home looking for him. To avoid the threats, he hid in different places. Eventually, to avoid the troubles and on his parents’ suggestion, he came to Hong Kong for protection.
15. Whilst in Hong Kong, he learnt that the Forum members still went to his home to threaten his parents. He does not believe the Nepalese authorities and police could protect him in the current turbulent political situation. He does not believe internal relocation feasible, as he will continue to organise meetings to voice out against the Maoists and the Forum, and they have extensive network with dominant political power. He considered he will be at risk wherever he is in Nepal.
The finding of the Board
16. The Applicant testified before the Board. He could not explain why the events which happened 13 to 14 years ago presented a current problem to him, nor was he able to explain why he had problems in the aftermath of a Comprehensive Peace Agreement in 2006 which brought the decade-long civil war in Nepal to an end. Likewise, he was unable to explain why he did not seek protection in Malaysia while he was working there, if he was then having problems in Nepal. The Board did not accept his explanation that he did not understand how to approach the authorities in Malaysia, as he already had the experience of approaching the police for assistance in Nepal. He further explained that he returned to Nepal because his problems did not seem to be so serious in May 2007. The Board found his answer inconsistent with his subsequent flee to Mainland China after returning to Nepal for barely a month.
17. Notwithstanding his claim that the problems he faced existed prior to his arrival in Hong Kong, he did not seek protection here until several months after his clandestine entry. Taking into account the Applicant’s delay in seeking asylum in Hong Kong and his failure to seek protection in Malaysia, the Board attached no credence to his claim of coming to Hong Kong to seek international protection. It did not accept he had suffered harassment or threats from the Maoists of an intensity sufficient to give rise to a fear and that he came to Hong Kong to seek international protection.
18. Alternatively, the Board noted that the Applicant had relocated himself to a different place in Nepal before. On that basis, the Board found the risk of harm was localised in his home area and as an able-bodied person with his education and work experience, it would be safe and reasonable for him to move to another part of Nepal, to avoid the perceived risk of harm. The Board therefore found that there are no substantial or strong grounds for finding there is any real chance, or a real risk that the Applicant will suffer any proscribed harm returning to Nepal.
19. Applying the law applicable to non‑refoulement protection to the facts found, the Board came to the conclusion that the Applicant had failed to prove his entitlement to protection under any of the applicable grounds under the USM. Hence, it dismissed his appeal against the Board’s Decision.
Legal principles applicable to judicial review
20. 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[5].
Grounds for judicial review
21. In his Form 86, the Applicant advanced the following five grounds for review:
(1) the Board’s and the Director’s decisions are wrong, unreasonable and unfair;
(2) the Director erred in failing to give weight to the presence of state acquiescence and that the Applicant was tortured by the state law enforcement agencies as well as those high up in the political circle;
(3) the Director failed to take such argument into account or to give enough weight to such argument and COI supporting the Applicant’s case;
(4) the Director’s attitude was unfair, and
(5) the Director failed to attain the high standard of fairness required by the Wednesbury test.
Some of these grounds are directed at the Director, and some at both the Board and the Director. The Director’s decision in the Notice was superseded by the Board’s Decision and is not the subject matter of the leave application, see Re Moshsin Ali[6]. For the Applicant’s benefit, the Court assumed that all these grounds are directed at the Board. But these grounds are all lacking in particulars or are in effect challenges against the finding of fact by the Board which is impermissible in an application for judicial review. The Applicant did not appear at the hearing and forwent the opportunity of perfecting these grounds with particulars. In the absence of arguable grounds or grounds with sufficient particulars, the court in an application for judicial review could only focus on errors of law, procedural unfairness or irrationality in the decision, which the Court will turn to in its overall scrutiny of the Board’s Decision.
Overall scrutiny
22. Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles applicable to non-refoulement protection under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness. The Board analysed the evidence properly, tested it against common sense and inherent probability. It found the Applicant incredible, his account inherently improbable, particularly when tested against the political situation of Nepal at the material time and his conduct. It rejected his account and found he had failed to establish the factual basis to support his claim for non-refoulement protection. It gave full reasons for its finding. The Board also went on and assessed his claim on the basis of his case as he asserted. On that basis, the Board found the Applicant’s risks were localized and that he could avoid the risk of harm by internal relocation. These are mixed findings of fact and of the law. Insofar as they are finding of the law, they are absolutely correct. Insofar as they are findings of fact, they are exclusively within the realm of the Board, which the Court on a judicial review will not interfere save when such finding was made as result of error of law or procedural unfairness or that the Decision is irrational. The Court could detect no error of law or procedural unfairness in the Decision. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. Basically, the Applicant failed to discharge his burden of proving his fears and risks, whether on the Board’s finding of facts or on the Applicant’s case as he asserted. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success.
Conclusion
23. For the above reasons, the leave application is refused.
Dated the 31st day of July 2025
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(Seline Sze) |
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for Registrar, High Court |
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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must: |
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)). |
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Sent to the Applicant
on 31/07/2025
Adhikari Gupta
Applicant’s ref. no: |
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 31/07/2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 12642/18/7/392/N506
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 1621/18 (Formerly RBCZ 2001678/14)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] [2018] HKCA 549
[2] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”)
[3] Risk of persecution by reference to the non-refoulement principle under Article 23 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol
[4] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383
[5] [2018] HKCA 524 at [14(1)]
[6] [2018] HKCA 549
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