PAIJA PUN, TEJ BAHADUR v. TORTURE CLAIMS APPEAL BOARD

HCAL 3885/2019

[2025] HKCFI 1159

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 3885 OF 2019

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

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

1.  The applicant’s application to withdraw the application for leave to apply for judicial review be refused.

2.  The applicant’s application for leave to apply for judicial review be dismissed.

Observations for the applicant:

The Leave Application

1.  By way of Form 86 dated 30 December 2019, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board ("the Board") dated 23 December 2019 (“the Board's Decision”). The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003885_2019_files/the_Board's_Decision.pdf

2.  The Board refused to allow the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 27 April 2018, and confirmed the Director’s said decision, which rejected the applicant’s non-refoulement claim on all the applicable grounds under the Unified Screening Mechanism (“the USM”).

The applicant’s case

3.  The applicant’s case (as detailed in the Board’s Decision) can be briefly summarised as follows:-

(1)  The applicant is a male Nepalese and a Magar Hindu born in Myagdi, Nepal. He received 8 years of education and then worked on the family farm in Pokhara. He is married to a Magar Hindu with two children.

(2)  The applicant lived in Kathmandu between 2012 and 2014, and worked as a delivery worker in a hotel before he left Kathmandu on 9 June 2014.

(3)  The applicant came to Hong Kong as a visitor on 11 June 2014, but he overstayed and was arrested by the police for breach of condition of stay (overstaying and taking up unapproved employment) on 10 February 2015.   

(4)  The applicant applied for non-refoulement protection on 21 March 2015 and claimed that if he were to return to Nepal, his stepbrother Raj would harm or kill him because of the dispute over the land given by their father to the applicant. He alleged that Raj had gone to him in person to threaten to kill him several times. He also alleged that Raj threatened to use his political party (the Communist Party of Nepal) to resolve the issue by force.

(5)  The Director rejected the applicant’s claim on 27 April 2018 and the applicant lodged an appeal/petition to the Board on 9 May 2018.

Grounds for judicial review

4.  The applicant did not advance any ground for his intended judicial review in Form 86 nor in his supporting affirmation dated 30 December 2019. He simply attached a copy of the Board’s Decision to his supporting affirmation and stated that the affirmation was for leave to apply for judicial review against the decision of the adjudicator of the Board as well as the Director.

Withdrawal and the oral hearing

5.  The applicant requested for an oral hearing of the Leave Application and his case was heard on 27 February 2025. However, before the hearing, the Immigration Department sent a letter dated 20 February 2025 to inform this court that the applicant had written a letter dated 6 February 2025 to cancel all his non-refoulement claims including appeal/JR (if any) in Hong Kong. As stated in the applicant’s said letter, the reason he gave for this withdrawal application is that he wants to go back to his home country as it is safe for him to go back and he has no money to buy air ticket.

6.  The applicant appeared in person at the hearing on 27 February 2025 and he indicated that he had nothing to supplement.

7.  There is no evidence to show that the applicant made the above withdrawal application other than out of his own volition. With this withdrawal application, it is clear that the applicant no longer wishes to proceed with the Leave Application.

8.  The Court of Appeal had held in Re Manik Md Mahamudun Nabi [2022] HKCA 471 that:-

“The applicant on his own motion applied to the Court to withdraw his application for leave to apply for judicial review. The Judge acceded to his application, whereupon there was nothing outstanding in the action. The Judge was correct to conclude the action by ordering a dismissal of the application instead of leaving the action at large.”

9.  Thus, it is right for this court to deal with the Leave Application instead of granting leave to the applicant to withdraw the Leave Application. It is just not right to leave the action at large by granting leave to withdraw to the applicant. This court will therefore proceed to consider the merits of the Leave Application.

Discussion

10.  First of all, it is wrong for the applicant to indicate in his supporting affirmation that the Director’s decision is included in the Leave Application. As held in Re Moshsin Ali [2018] HKCA 549, the Director’s decision is not a decision that is susceptible to judicial review once an appeal to the Board is pursued by a claimant. Thus, this court will only consider the Leave Application regarding the Board’s Decision.

11.  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 [2018] HKCA 524).

12.  In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be a reasonably arguable claim which enjoyed realistic prospects of success.

13.  Since the applicant did not advance any specific ground for the intended judicial review, the court will proceed to examine and scrutinize the Board’s Decision for any error of law, procedural unfairness and irregularities.

14.  In assessing the appeal by the applicant, the Board held a hearing on 28 March 2019. The applicant appeared in person and was assisted with suitable interpretation. He was given the chance to present his case and grounds of appeal to the Board.

15.  The Board found that there were inconsistencies in his evidence with respect to when and why his father gave him the land as well as the disparity of treatment towards him and Raj by his father. The Board considered his claim that Raj was a Maoist and a member of the Communist Party of Nepal lacking details and not supported by objective evidence.

16.  The Board also found from the applicant’s oral evidence that his father gave a piece of land, though smaller, to Raj, and it is implausible that Raj would resort to violence to resolve their problem when their father was still alive. Moreover, the evidence before the Board was that Raj had never inflicted any harm on the applicant except to threaten him with words.

17.  The Board re-assessed the applicant’s claim on all the applicable grounds under the USM, namely:-

(a)  risk of persecution with reference to the non-refoulement principles under Article 33 of the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol;

(b)  risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance;

(c)  risk of violation of right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance; and

(d)  risk of torture under Part VIIC of the Immigration Ordinance.

18.  After due consideration of the law and the evidence as presented by the applicant, the Board found that the likelihood of the applicant’s feared ill-treatment, risk of right to life, risk of torture and risk of persecution was low. Hence, the Board concluded that the applicant was not entitled to non-refoulement protection pursuant to any of the applicable grounds under the USM.

19.  In assessing the availability of state protection and the viability for the applicant’s internal relocation, the Board had referred to country of origin information for the applicant’s country and considered that the applicant should be able to obtain assistance from the police and authorities if he needed it. Further, the fact that the applicant stayed in Kathmandu for 2 years without any problem before he departed from Nepal supported the Board’s finding that the applicant could safely relocate to other places such as Kathmandu within Nepal without undue hardship.

20.  Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly set out the law and key legal principles relating to all the applicable grounds under the USM, the burden of proof and the standard of proof. The Board also correctly identified the issues and observed a very high standard of fairness. This court could detect no error of law, procedural unfairness or irrationality in the Board’s Decision.

21.  The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision. Thus, the intended judicial review has no realistic prospects of success at all, and the Leave Application must be dismissed.

Conclusion

22.  For reasons aforesaid, the application to withdraw the Leave Application is refused and the Leave Application is 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