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HCAL 2080/2020
[2025] HKCFI 6010
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2080 of 2020
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BETWEEN
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Magar Khagendra Bahadur |
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 K.W. Lung:
Leave to apply for Judicial Review be refused.
Observations for the Applicant:
The procedural history
1. The applicant applies for leave to apply for judicial review of the Decision dated 6 October 2020 of the Torture Claims Appeal Board (“the Board’s 2nd Decision”), dismissing the appeal against the Director’s 2nd Decision on his claim on BOR 2 risk.
2. The applicant asked for a hearing. However, he was absent at the hearing on 17 November 2025. I shall deal with his application on the papers.
3. Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.
4. The applicant is a national of Nepal. He is an illegal immigrant. He had lodged a non-refoulement claim with the Director of Immigration (“the Director”).
5. The Director considered his claim on the following risks:
a. risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);
b. risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and
c. risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).
6. By way of Notice of Decision dated 31 August 2015 (“the Director’s 1st Decision”), the Director dismissed the applicant’s claim because it was unsubstantiated.
7. The applicant appealed to the Board. The Board dismissed his appeal by the Board’s Decision dated 5 May 2017 (“the Board’s 1st Decision”)
8. The applicant did not apply for leave for judicial review of the Board’s 1st Decision, which has become final.
9. The Director invited the applicant to provide further information for further consideration of his claim on the risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”).
10. The applicant did not provided any additional information as requested.
11. The Director, by Notice of Further Decision dated 12 June 2017 (“the Director’s 2nd Decision”) refused the applicant’s claim on BOR 2 risk.
12. The applicant filed a Notice of Appeal/Petition on 19 June 2017 against the Director’s 2nd Decision. In support of his application, the applicant stated:
“I am not satisfied with this decision. Therefore, I want to make a re-application. I do not agree to (sic) this decision.”
13. The Board considered that the applicant had not submitted any further information in support of his claim on BOR 2 risk.
14. The Board decided to determine the applicant’s appeal without a hearing.
15. In the Board’s 2nd Decision, the Board stated that it had considered the facts in the Board’s 1st Decision, covering Torture risk, BOR 3 risk and Persecution risk.
16. The Board found that the applicant failed to establish his BOR 2 claim and, by the Board’s 2nd Decision, dismissed his appeal.
Application for leave to apply for judicial review of the Board’s Decision
17. The applicant has filed Form 86 dated 19 October 2020 for leave to apply for judicial review of the Board’s 2nd Decision.
18. In his affirmation in support of his application, the applicant asked for a hearing, but he has not raised any specific ground to challenge the Board’s 2nd Decision.
19. For the procedural history and the Board’s reasons, see the Board’s 2nd Decision per hyperlink https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL002080_2020_files/the_Board's_Decision.pdf.
Discussion
20. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).
21. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.
22. The applicant has not raised any valid ground to challenge the Board’s 2nd Decision.
23. In any event, since the Board in the Board’s 1st Decision had found that there was no BOR 3 risk, he does not have an arguable case for his claim on BOR 2 risk as held by the Court of Appeal in Kulwinder Kaur v Director of Immigration and Torture Claims Appeal Board/Non-refoulement Claims Petition Office [2022] HKCA 48, Hon Chu, JA (as she then was), Barma JA and Au JA ,7 January 2022:
“59. … upon determining that there is no BOR 3 risk, there is no arguable ground for any BOR 2 risk: see AA v Sweden (2017) 64 EHRR 20 at [52] and [96]; RM v Gerard Paul Muttrie Esq (unrep., HCAL 166/2015, 3 March 2016) at [52].”
24. The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s 2nd Decision.
DISPOSITION
25. I refuse to grant leave to the applicant to apply for judicial review of the Board’s 2nd Decision. Accordingly, I dismiss his application.
26. Shortly before this Form CALL-1 is published, the Court received a letter dated 26 November 2025 from the applicant in which she said that her problems have been solved and she wants to withdraw her application.
Dated the 17th day of December 2025
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(Annson CHEUNG)(Ms)
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 17/12/2025
Magar Khagendra Bahadur
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 17/12/2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
BOR 766/17/6/83/N69
Director of Immigration
Putative Interested Party’s ref. no.:
RBCL/857/14 (CZ)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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