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HCAL 210/2023
[2026] HKCFI 4356
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 210 of 2023
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BETWEEN
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Yangdemba Subba Nikita |
Applicant |
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and |
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Torture Claims Appeal Board/ |
Putative |
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Non-refoulement Claims Petition Office |
Respondent |
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and |
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Director of Immigration |
Putative |
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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 (Non-refoulement Claims) Isaac Chan:
1. The Form 86 be amended to name 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:
1. By a Form 86 filed on 13 February 2023 (“Form 86”), the applicant, a national of Nepal, applied for leave to apply for judicial review against the decision of the Torture Claim Appeal Board / the Non-refoulement Claims Petition Office (“Board”) dated 1 February 2023 (“Board’s Decision”)[1] confirming the decision of the Director of Immigration (“Director”) dated 24 December 2021 and rejecting the applicant’s non-refoulement claim.
2. In the Form 86, the Board and the Director were both named as the putative respondent. The Director should be the putative interested party instead. The Form 86 shall be amended accordingly on the court’s own motion.
3. I refer to the Board’s Decision for the background of the applicant, the basis of the claim, the evidence and the argument the applicant has relied upon, which will not be repeated herein.
4. The Court’s role in a judicial review is not to provide a further avenue of appeal. The primary decision makers are the Director and the Board. Given the seriousness of the issue involved in non-refoulement cases, the Court will adopt an enhanced standard in scrutinizing the decisions of the Board. However, the Court will not intervene unless there are errors of law, procedural unfairness or irrationality in those decisions: see Nupur Mst v Director of Immigration [2018] HKCA 524, at paragraph 14.
5. General assertions without particulars cannot be effective grounds to support a judicial review: see Re Fabio Arlyn Timogan [2020] HKCA 971, at paragraph 23.
6. The present application for leave is meant to be a filtering process, and I am not expected to give elaborated reasons for my decision: see Re Zunariyah [2018] HKCA 14, at paragraph 23. I will therefore provide brief reasons for my decision as follows.
Discussion
7. The applicant has not provided any grounds for the intended application for judicial review.
8. At the hearing on 8 May 2026, the applicant was absent.
9. Applying the enhanced standard of scrutiny, I do not see any errors of law, procedural unfairness or irrationality in the Board’s Decision.
10. The Board’s Decision has, with respect, correctly and comprehensively set out the applicable legal principles. I do not see any errors in either the summary or the application of those legal principles.
11. The Board’s Decision has also set out the procedural history of the applicant’s non-refoulement claim, including the details of the hearing before the Board on 23 August 2022 (see paragraphs 3 to 11 of the Board’s Decision). The applicant has not made any complaints of irregularities or unfairness in the entire process.
12. After a detailed analysis of the applicant’s evidence given both before and at the hearing, the Board was not convinced by the applicant’s claim that the cousin of her late husband intended to kill her because of a land dispute, and the purported future risk was her own speculation only (see paragraphs 37 to 39 of the Board’s Decision). In any event, the Board took the view that state protection would be available and internal relocation would be possible and not unduly harsh (see paragraph 47 and paragraphs 94 to 96 of the Board’s Decision). Based on the available materials, the conclusions of the Board were clearly justifiable. I do not see any basis to suggest that the Board was irrational based on the principle set out in Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223.
13. I therefore dismiss the application for leave to apply for judicial review under the Form 86.
Dated the 4th day of August 2026
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(Wilinda YIU)
for Registrar, High Court
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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 4/8/2026
Yangdemba Subba Nikita
Applicant’s ref. no:
Nil |
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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 4/8/2026
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 19622
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 2190/21 (Formerly RBCZ 5000302/21)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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