GORAKH BAHADUR LIMBU v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 809/2020

[2025] HKCFI 4032

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 809 of 2020

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;

1.   The Form 86 is amended on the Court’s own motion, naming only the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office as the Putative Respondent; and

2.   Leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

Introduction

1.  The Applicant is a citizen of Nepal. By a Form 86 dated and filed on 4 May 2020 (“Form 86”), which was accompanied by a supporting Affirmation also dated and filed on 4 May 2020 (“the Affirmation”), the Applicant sought leave to commence a judicial review of a decision of the Torture Claims Appeal Board (“TCAB”)/Non-Refoulement Claims Petition Office (“NRCPO”) made on 7 November 2019 (“the TCAB Decision”)[1].  I will use the abbreviations and definitions from the TCAB Decision unless otherwise specified herein.

2.  The Applicant sought an oral hearing of his application.  He made some submissions in relation to the issue of delay, which I will set out below.

3.  I have therefore amended the Form 86 of my own motion to reflect the identity of the proper putative Respondent.

Background

4.  This is set out in the TCAB Decision.  While I will not repeat the contents thereof, in summary and in relation to the assessment of his claim:

(1)  The Applicant lodged a torture claim on 28 March 2007.  That was rejected on 27 April 2012 and a petition against that was dismissed on 12 June 2012;

(2)  On 8 April 2014 the Applicant lodged a claim for non-refoulement relief, which was assessed on the grounds of BOR 2 Risk[2], BOR 3 Risk[3], and Persecution Risk[4] and was rejected by the Director of Immigration (“Director”) in a decision dated 7 December 2018 (“Director’s Decision”);

(3)  The Applicant hence sought relief from the TCAB/NRCPO by way of an appeal/petition dated 17 December 2018; and

(4)  The TCAB/NRCPO issued by post a Notice of Hearing to the Applicant dated 23 May 2019, and held a hearing in relation to the Applicant’s non-refoulement claims on 24 July 2019;

(5)  However, the Applicant failed to attend the scheduled hearing, even though (as is obvious from Paragraph 7 of the Affirmation, as relevant to Complaint 4 defined below) he had received the Hearing Bundle before the scheduled hearing and was aware of the latter. The TCAB/NRCPO hence that day sent, also to the Applicant’s last known address, a written notice of its intention to determine the appeal in the Applicant’s absence and stated that he could submit, within 7 days, a written explanation of his failure to attend the hearing together with documentary evidence supporting the explanation; and

(6)  As the TCAB/NRCPO received no written reply, further submission, or communication from the Applicant, it proceeded to determine the petition/appeal in his absence and handed down the TCAB Decision on 7 November 2019, in which it found that the Applicant’s appeal/petition failed on all applicable grounds and confirmed the Director’s Decision.

Legal Principles

5.  An applicant, even one acting in person, is required to identify the grounds of judicial review clearly and succinctly in the Form 86, and to fully and frankly disclose all material facts and potential legal answers (Ho Loy & Another v Director of Environmental Protection, unrep.  HCAL 21/2015, 22 December 2016, Chow J. (as he was then) at §142; Leung Kwok Hung, unrep., HCAL 83/2012, 28 September 2013, Lam J. (as he was then) at §35; Begum Khadija [2018] HKCA 571; Khan Kamran [2020] HKCA 380).

6.  It is trite that the role of the Court in a judicial review is not to provide a further avenue of appeal, and that the Court should not usurp the role of the TCAB/NRCPO which is (and together with the Director are) the primary decision‑makers.  The assessment of evidence, COI materials, and credibility, risk of harm, state protection and viability of internal relocation are primarily within the province of the TCAB/NRCPO and the Director, which are entitled to make evaluations based on the evidence available and to decide the weight to be given to them.  While the Court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of the issue at hand, the court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the TCAB/NRCPO.  (Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; Nupur Mst v Director of Immigration [2018] HKCA 524; Re Kartini [2019] HKCA 1022; Re Rupinder Singh [2021] HKCA 886).

7.  In order for me to give leave for judicial review, I have to be satisfied that there is an intended ground of review which is reasonably arguable, which is one that enjoys a realistic prospect of success (Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676).  As a leave application of this sort is meant to be a filtering process, I am not expected to give elaborate reasons for my decision (see Re Zunariyah [2018] HKCA 14, at §23).

8.  Given RHC O. 53 r. 4(1) and s. 21K(6) High Court Ordinance (CAP. 4A),where an Applicant applies for leave to apply for judicial review more than 3 months after the decision:

(1)   The failure to apply within 3 months constitutes “undue delay”. To justify an extension of time in which to apply for leave, the Applicant must show “good reason” to extend time. In deciding this, certain factors that are likely to be significant are (i) the length of the delay (ii) the explanation for the delay[5] (iii) the merits of the substantive application[6] (iv) prejudice, and (v) whether the application raises questions of general public importance;

(2)   Where the court considers that there is no good reason for extending the period, it will refuse leave to apply for judicial review. The refusal of an extension of time is part and parcel of a refusal to grant leave to apply. It is not the case that the court refuses the extension of time as a discrete decision and then makes no decision on the question of leave to apply for judicial review, treating this as a separate matter entirely;

(3)   If the court is satisfied that there is good reason for extending the period, it does not follow that leave to apply for judicial review will automatically be given. While the court might grant leave, it retains a discretion to refuse to do so and the existence of a good reason for undue delay is only one facet of the question, others including sufficiency of interest and the need to satisfy the arguability test. Leave may also be refused on the basis that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration; and

(4)   Even if leave to apply is granted, the issue of undue delay on the part of the applicant may be raised again at the substantive hearing of the judicial review application. That is a separate consideration of whether relief should be refused on the basis that the court thinks that relief would be likely to cause substantial hardship or prejudice to the rights of another or be detrimental to good administration.

See AW v Director of Immigration & anor. [2016] 2 HKC 393 (CA) (at §§23 to 36), Thomas Lai [2014] 6 HKC 1 (at §§43 to 45 as also cited in AW, supra), and H v Director of Immigration (2020) 23 HKCFAR 248 at §§17-22, 36-44 citing inter alia both AW and Thomas Lai. See also Re Hariatiningsih [2021] HKCFI 1194 at §§12-13, 16-19 citing the aforesaid, upheld in [2022] HKCA 1321.

Discussion

9.  I do not see any good reason on the papers, and in the circumstances, to extend time for the Applicant’s application for leave to apply for judicial review. I therefore refuse to grant such an extension of time, and dismiss the application for leave to apply for judicial review. This is for the following reasons.

10.  Dealing, firstly, with the merits of the substantive application, the grounds as set out in the Form 86 (collectively, “Grounds”) are that “the Respondent was in breach of procedural fairness in the following parts”:

(1)  “… the Respondent had unlawfully fettered his discretion by refusing the applicant’s appeal on the grounds that they did not satisfy the requirement”; (Ground 1)

(2)  “… the Adjudicator acted in a procedurally unfair manner in dealing with Applicant’s appeal”; (Ground 2)

(3)  “… the Respondent’s decisions to refuse the Applicant’s appeal on (sic) were unreasonable or irrational in the public law sense, or are a result of procedural errors or unfairness”; (Ground 3) and

(4)  “… the Respondent failed to meet the greater care and duty owed to a

self-represented claimant”. (Ground 4)

11.  The Form 86 also says that the application “also includes a judicial review of the Adjudicator’s decision of the Applicant’s oral hearing of the Appeal/Petition.” As this is repeated in the Affirmation, I will address this in relation to Complaint 1 below.

12.  The Affirmation contains the following allegations:

(1)  That the Applicant “also includes a judicial review of the Adjudicator’s decision of my oral hearing of the Appeal/Petition”; (Complaint 1)

(2)  The Applicant lodged a claim for non-refoulement protection on 28 March 2007, which was transferred into the USM “and it was refused after just about 11 years on 07 of December 2018 which is a substantial delay”; (Complaint 2)

(3)  The Applicant was not legally represented in the filing of his appeal, and “no Legal advices(sic) was provided to the Applicant before [his] appeal filing”; (Complaint 3)

(4)  The majority of the hearing bundle was in English (inclusive of the Director’s skeleton submissions) and was given to him only a few days before the scheduled appeal hearing with an intervening weekend, and he did not have time to prepare for the hearing and to find a reasonably cheap interpreter or hire one since he had no income and was not allowed to work in Hong Kong. He hence did not understand what would happen and was “confused” in terms of what was happening, and having answered all the questions honestly is aggrieved that his credibility was found questionable.  The hearing was unfair due to lack of care by the TCAB to make appropriate arrangements in relation to the hearing bundle; (Complaint 4)

(5)  The Applicant was not notified by phone as he had requested, but rather only obtained the TCAB Decision by hand on 10 March 2020; (Complaint 5)

(6)  The TCAB had “significantly relied on the source of news which is not officially recognized or it is simply hearsay. They have also relied on some cases which are fairly outdated considering the dramatic changes. The lack of credible source of information has resulted in them making groundless speculations that it is safe for [me] to return back to my country of origin”; (Complaint 6)

(7)  It was unfair for a decision to be made on BOR 2 Risk “without even being screened by the Immigration Department. How is this possible for any claim goes to Appeal section directly without even screened or judge by the Immigration Department first?” (Complaint 7)

(8)  “Similar to this there is many more unacceptable and unexplainable grounds, which are shown to refuse my Appeal/petition.” (Complaint 8)

(9)  That the Director and the Adjudicator reached the wrong decision as they rejected his claim for non-refoulement relief “without any proper inquiry and without carefully understanding [the Applicant’s] situation”, which is followed by a suggestion that a fair understanding of his claim requires that “my immigration officer and the Adjudicator are invited to tour my country and ask those familiar with [my] case what real danger I would face if I am returned there”; (Complaint 9) and

(10)  Complaints at Paragraphs 15 to 17 of the Affirmation that, essentially, the wrong decision was reached on the merits[7]. (Complaint 10)

13.  Grounds 1 to 4 are the only grounds mentioned in the Form 86, but are merely generic, vague, and unparticularised assertions using selected keywords and phrases without reference to any underlying facts or matters establishing why, how, and where each of those complaints arise in relation to the TCAB Decision.  They are hence entirely inadequate as general assertions or propositions of law without particulars are not effective grounds to support a judicial review and cannot assist an applicant (Re Mizan Sikder [2019] HKCA 20 at §17; Re Aziz Nasir [2019] HKCA 578 at §17; Re Kharsu Numan [2019] HKCA 626 at §24; Re Salim Ahmed [2020] HKCA 244 at §20; Haider Khalil [2021] HKCA 223 at §16). Complaints 1 and 8, in particular, also fall foul of such principles.

14.  Nevertheless, given the seriousness of the issues at hand and the Complaints raised, I have considered the TCAB Decision with rigorous examination and anxious scrutiny, applying the enhanced Wednesbury standard and bearing in mind the need for a high standard of fairness.  Having done so, I do not (for the following reasons) see that the Applicant has any reasonably arguable case that there was procedural unfairness, an error of law, and/or irrationality/failure to meet the enhanced Wednesbury test sufficient to vitiate the TCAB Decision, even taking into account all of Grounds 1 to 4 and Complaints 1 to 8. 　　 　　　Hence there is no basis for the court to intervene by way of judicial review, and I am not satisfied that there are any reasonably arguable grounds for judicial review which enjoy a realistic prospect of success.

15.  The TCAB/NRCPO Decision begins with an outline of the Applicant’s family, education, immigration, and procedural history (Paragraphs 1 to 11). This is followed by his claims as advanced via the Torture Claim Form, Supplementary Claim Form, and two Screening Interviews, their treatment of such in the Director’s Decision, and his further claims in the Notice of Appeal/Petition (Paragraphs 12 to 30). There was then mention of the documents considered and the key legal principles (Paragraphs 31 to 33).

16.  The decision-then maker outlined the facts relating to the conduct of the oral hearing and the decision-making process. This included, in particular, that (i) The Applicant had been given due notice of the oral hearing by post at his last known address but had failed to attend the hearing (ii) He was given written notice of the TCAB/NRCPO’s intention to determine the appeal in his absence and that he could submit a written explanation of his failure to attend the hearing together with documentary evidence supporting the explanation (iii) The Applicant failed to respond to such; and (iv) Accordingly, the TCAB/NRCPO decided to determine the petition/appeal in his absence (Paragraphs 34 to 38).

17.  Upon consideration of the documents (including the Applicant’s written statements and COI), the TCAB/NRCPO was not persuaded that the Applicant’s claims were credible, and it found that he did not face a real risk of harm of any kind so as to give rise to any of the relevant non-refoulement obligations.  It set out its reasons for this conclusion in relation to the three alleged sources of harm, namely, from Maoists and for political reasons, from villagers due to an unpaid loan, and due to the Applicant’s conversion to Christianity.  In doing so the TCAB/NRCPO set out its evaluation of and conclusions reached on the evidence before it, including as to the credibility, and on whether it accepted portions, thereof.  Ultimately, and pursuant to this process, the TCAB/NRCPO did not accept that the Applicant was of any adverse interest to the Maoists, to members or supporters of the Communist Party, or of any other political party in Nepal, or that the Applicant faced any real risk of serious harm, torture, CIDTP, or death at the hands of villagers from who he claimed to have borrowed money, or that the Applicant faced a real risk of harm of any kind for reasons of his claimed conversion to Christianity if he were to be refouled to Nepal. It also found that in any event, internal relocation to locations such as Kathmandu or Pokhara was open to him and was reasonable (Paragraphs 38 to 63).

18.  Having regard to the above, I do not see any reasonably arguable ground for judicial review arising in relation to Complaints 1, 3, 4, and 6, even if such are considered alongside the Grounds.

19.  Insofar as portions of Complaints 1 and 4 apparently relate to his answers at an oral hearing held by the TCAB/NRCPO, such must be dismissed given that the Applicant failed to attend the oral hearing as scheduled. I also see no public law error in the approach taken by the decision-maker at TCAB Decision Paragraphs 34 to 39, having regard also to s. 15 of Schedule 1A of the Immigration Ordinance (CAP. 115) as in force at the time.

20.  In any event, Complaints 3 and 4 do not (even if viewed cumulatively, and/or alongside Complaints 1 and 6) establish any reasonably arguable case of an error of public law, including those set out in Grounds 1 to 4:

(1)  As to Complaint 3, neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187, nor the judgment of FB v Director of Immigration HCAL 51/2007 grant the Applicant an absolute right to free legal representation at all stages of the proceedings. (Re Zafar Muazam (unrep., CACV 2/2018, 23 March 2018); Re Zunariyah [2018] HKCA 14; Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17; Re Lopchan Subash [2018] HKCA 37; Re Ahmed Syed Rafiq [2018] HKCA 178 at §22; Vu Hong Diep v Torture Claims Appeal Board/Non-Refoulement Claims Petition Office [2023] HKCA 1378; Kamran Khan [2022] HKCFI 1924 at §§21-25 and [2022] HKCA 230 at §§16-17). Here, I see nothing amiss with the lack of legal representation before the TCAB/NRCPO, given that the Applicant was legally represented prior to the making of the Director’s Decision. A fortiori where the Applicant did not, between the Director’s Decision and the filing of the Form 86 and Affirmation, apparently complain (including to the decision-maker) about the lack of legal representation, and has not identified any specific resulting unfairness/prejudice.

(2)  As to Complaint 4, similarly, the high standard of fairness does not require or include provision of interpretation at any time the Applicant claimed or desired, particularly when it was his choice to come to Hong Kong where the official languages are Chinese and English. He has to cope with and find ways around this alleged disability and cannot expect to have the luxury of any documents to be fully translated into his first language for his benefit as and when he requires.  He has to find assistance himself from among his friends and his ethnic community. Indeed, the Applicant’s Form 86 was in English, and the Affirmation is written in English with a translation clause. The Applicant hence has access to, and would have been able to seek, interpretation services and language assistance if necessary (Kamran Khan, supra; Zafar Muazam, supra).

(3)  The Applicant should have been familiar with the information he had provided in the Bundle, in particular with the Torture Claim Form, SCF, and the records of his two interviews which were of core importance and which would have been prepared with the benefit of translation and legal assistance leading up to the Director’s Decision.  He also had ample time to familiarise himself with the Director’s Decision, the COI referred to within, and the aforesaid core documents and information that he had provided.

(4)  The Applicant should have paid due attention to and prepared for his appeal hearing regardless of any intervening weekend, and given also his access to interpretation services/language assistance.

(5)  There is no indication that the Applicant complained about the lack of interpretation and/or understanding of the Bundle or any documents, that he needed more time or assistance to prepare for the hearing or address any issues, or about any unfairness and/or confusion relating to such issues.

(6)  The Applicant has not identified any specific procedural unfairness and resultant confusion on his part which affected or prejudiced the conduct of the TCAB/NRCPO in determining the appeal/petition, and/or the TCAB Decision. Nor do I see that that any such issues arise in this case.

(7)  I do not see any reasonably arguable ground for judicial review arising in relation to Complaints 1 and 6, even if such are considered alongside the Grounds mentioned in the Form 86. In the TCAB Decision the decision-maker drew conclusions based on (and giving reasons with reference to) the relevant evidence and COI before him.  The Applicant has not identified what source of news or cases relied on was/were alleged to be “not officially recognized”, or how such are sufficient to vitiate the TCAB Decision. Nor do I see that any such issues arise in this case.

(8)  Given the above I see absolutely no merit in any argument that such Complaints establish any reasonable arguable case of procedural unfairness (or indeed any other public law error) in relation to the TCAB/NRCPO’s determination of the notice of appeal/petition.

21.  Moreover, and for reasons below, I do not see that the Applicant’s other Complaints and Grounds establish any reasonably arguable public law error which would entail him to rely on Complaint 1 and/or Grounds 1 to 4.

22.  Complaint 2 fails to mention that his torture claim had been determined in 2012, and that he lodged the subject claim for non-refoulement relief in 2014. In any event I do not see that there has been substantial delay in processing the claim given that there are many pending claims for non-refoulement protection and the Director has had to deal with a large number of cases with limited resources. Further and in any event, I do not see that the length of time taken by the Director to process the Applicant’s claims gives rise to any reasonably arguable case that there has been a public law error (including in relation to Grounds 1 to 4) which vitiates the TCAB Decision. A fortiori when the Applicant has not identified any unfairness or prejudice.

23.  Nor do the facts within Complaint 3 (even if accepted as true) raise any reasonably arguable ground for judicial review. There is no legal basis on which the Applicant was entitled to be informed by telephone of the outcome of his petition. There is also no public law error arising from the Applicant being served by post with the TCAB Decision, given the provisions of s. 37ZV Immigration Ordinance (CAP. 115) and Paragraph 22.5 of The Practice and Procedural Guide of the Administrative Non-Refoulement Claims Petition Scheme in force at the time.

24.  Complaint 7 is devoid of merit as the issue of BOR 2 Risk was clearly raised and assessed by the Director in the Director’s Decision, pursuant to which the Applicant petitioned to the TCAB/NRCPO. I also do not see that it is reasonably arguable that such approach is to be criticised on any public law grounds, let alone to an extent so as to vitiate the TCAB Decision.

25.  As for Complaint 8, the Applicant has not provided specifics or particulars of such alleged “many more unacceptable and unexplainable grounds” (including whether and why such are public law grounds) on which he apparently relies. There is hence no complaint which I can properly evaluate. In any event, for reasons above and below, I see no reasonably arguable case that there are public law errors sufficient to vitiate the TCAB Decision.

26.  Complaint 9 also does not raise any arguable ground (including in the nature of the Grounds) of judicial review, as there is no legal or legislative basis to require the Director or the TCAB/NRCPO to actually visit the risk state or country of origin to conduct any investigation of a non-refoulement claim. While the inquiry is one of joint endeavour and there is a high standard of fairness, the burden is on the Applicant to prove his claims, and the Director and the TCAB/NRCPO are to conduct proper enquiries into current and relevant COI as regard his home country in their assessing and determining his claims (Palao Rosita Borja [2024] HKCFI 795; Das Radha Mohan [2024] HKCFI 2208).

27.  Finally, Complaint 10 does not raise any reasonably arguable ground of judicial review. This is because the role of the Court in a judicial review is not to provide a further avenue of appeal, and judicial review is not an avenue for revisiting the assessment in the hope that the court may consider the matter afresh and the assessment of evidence, COI materials, and credibility, risk of harm, internal relocation, and BOR 2 Risk, BOR 3 Risk, and Persecution Risk are primarily within the province of the TCAB/NRCPO and the Director.

28.  Secondly, there is undue delay in this case as the leave application was filed just under 3 months out of time, although given the unusual circumstances of February and March 2020 I am prepared to consider such delay as being one of just over 7 weeks[8]. 　Despite this, there is neither a request for an extension of time to make the application in the Form 86, nor any explanation for the undue delay.　 At the oral hearing I reminded the Applicant that (as per Complaint 4) he had received the Hearing Bundle shortly before the scheduled hearing. I also asked the Applicant what the explanation was for the delay and whether there were any good reasons to extend time.  He said that he had changed his address at some time (albeit that he could not remember exactly when) and hence he did not receive the TCAB Decision.  However, he admitted that he had not notified the TCAB/NRCPO of his change in address.

29.  It was the Applicant’s obligation as a litigant to provide an effective address for service in relation to correspondence or notices of the Court, the Department of Immigration, and the TCAB/NRCPO, and as far as the latter was concerned, the address he gave it was the Applicant’s designated means of contact.  While the TCAB/NRPCO had an effective address as of July 2019[9], the consequence of any delay occasioned by the subsequent ineffectiveness of that address hence falls on his shoulders.  I hence do not consider that he has established a valid explanation for the delay (Hasmi Rizwan Imran [2018] HKCFI at §§6, 8; HKCA 439 at §§8(a), 10(d), 14-15).  

30.  Thirdly, I do not see any question of general public importance raised by the application which is likely to be resolved by the courts in any event.  Given the lack of any reasonably arguable grounds, I also see no prejudice to the Applicant if the application were not allowed to proceed, whereas allowing it to proceed would clearly be to the detriment of public administration and would needlessly prejudice the putative Respondent. 

Conclusion

31.  In the circumstances, I have ordered that the Form 86 be amended as described above, and that the application for leave to apply for judicial review be dismissed.

32.  For completeness, I also refuse to make the orders sought in the Form 86 for continuation of anonymity or sealing orders which the Applicant claims were made at the commencement of these proceedings, and for costs. I do so as there were no anonymity or sealing orders made at the commencement of these proceedings (and there are no grounds put before me for such an application), and as there is no basis on which the Applicant should be awarded costs.

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