CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1194 of 2025
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BETWEEN
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Adhikari Umananda |
Applicant |
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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 APPLICATION
1. The applicant applies for leave to apply for judicial review of the Decision dated 28 April 2025 of the Torture Claims Appeal Board (“the Board’s Decision”), dismissing the appeal against the Director’s Decision as described below.
2. The applicant appeared the Court on 14 January 2026.
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.
The applicant
4. The applicant is a national of Nepal. He is an illegal immigrant, having entered Hong Kong as a visitor on 8 February 2024, but overstayed since 15 February 2024. He surrendered to the Immigration Department, and lodged a non‑refoulement claim with the Director of Immigration (“the Director”) on the basis that, if refouled, he will be harmed or killed by his enemies, who had allegedly assaulted, threatened and extorted money from him.
5. Details of his claim are set out in the Board’s Decision. See hyperlink. https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2025/HCAL001194_2025_files/the_Board's_Decision.pdf
The Director’s Decision
6. The Director considered the applicant’s claim in relation to the following risks:
a. risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);
b. 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”);
c. 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
d. 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”).
7. By way of Notice of Decision dated 18 February 2025 (“the Director’s Decision”), the Director dismissed the applicant’s claim on all applicable risks because it was unsubstantiated.
The Board’s Decision
8. The applicant appealed the Director’s Decision to the Board. On 17 April 2025, the Board conducted an oral hearing for his appeal. He had given oral evidence and answered the Board’s questions.
9. Having considered the evidence, the Board made the findings below.
(1) There was no evidence to show that his enemies involved either the state or any of the officials. [35]-[37]
(2) It was a private matter between him and his enemies. [38]
(3) There was no evidence that the enemies will harm or kill him if he returns to Nepal; that the risk was across Nepal; that he had suffered injuries to the required severity; and that the state was unwilling to provide protection for him. [46]
(4) State protection will be available to him. [69]
(5) Internal relocation is viable. [96]
10. For the reasons above, the Board dismissed his appeal and affirmed the Director’s Decision.
Application for leave to apply for judicial review of the Board’s Decision
11. The applicant has filed Form 86 dated 22 May 2025 for leave to apply for judicial review of the Board’s Decision.
12. In his affirmation in support of his application, the applicant has raised 10 pages of grounds, which I shall summarize as below.
(1) He does not speak or understand English well. He did not have translation service for the documents and the Board’s Decision.
(2) He case should be re-considered.
(3) The Board had made up its decisions before considering his evidence.
(4) The Board had not considered that he had reported to police and he had relocated to other places, but his enemies located him and assaulted him for money twice.
(5) The Board failed to take all circumstances into consideration such as the existence of a consistent pattern of gross flagrant or mass violation of human rights.
(6) The Board failed to consider the country of origin information in respect of the political situations in Nepal. It only cheery picked the information it liked to consider.
DISCUSSION
13. 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).
14. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said that he had presented his full story to the Board.
15. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:
“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). 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 Board.”
16. The grounds raised in paragraph 12 do not advance his application. Grounds (2)-(6) are his bare assertions or personal opinions without any evidence in support. They are not valid to challenge the Board’s Decision[1]. As to ground (1), the applicant is not entitled to interpretation service all the time of the proceedings[2]. From his 10‑page affirmation, I do not agree that he does not understand English well. His grounds are not valid to challenge the Board’s Decision.
17. The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.
DISPOSITION
18. I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.
Dated the 11th day of February 2026
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(Allen LEE)
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 11/2/2026
Adhikari Umananda
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 11/2/2026
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 25745
Director of Immigration
Putative Interested Party’s ref. no.:
RBCL 1381/24 (CZ)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] The Court of Appeal in Salim Ahmed alias MD Salim [2020] HKCA 244 held:
“20. … … general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case: Re Mizan Sikder [2019] HKCA 20 and Ibrahim v Simon Russell [2019] HKCA 1327.” See also Re Haider Khalil [2021] HKCA 223 [16].”
[2] The Court of Appeal in Re: Sharma Poonam [2019] HKCA 804, held:
“16. It has been decided in Hong Kong that the high standard of fairness required by law would not entail an interpretation service being made available to an applicant all the time as she may desire: see Re Gurnishan Singh [2018] HKCA 704; Re Gurung Sagar [2019] HKCA 658.”