PUN NIKESH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 3826/2019

[2026] HKCFI 1407

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 3826 of 2019

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following;

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

1.  The Form 86 was amended on the Court’s own motion; and

2.  Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 23 December 2019 for leave to apply for judicial review (the “leave application”) of the decision of the Director of Immigration (the “Director”) dated 19 December 2019. In his supporting affirmation filed on the same date, he annexed a copy of a decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 19 December 2019 (the “Decision”) dismissing his appeal against the decision of the Director in his Notice of Decision dated 3 September 2018 (the “Notice”) refusing his application for non-refoulement protection. Obviously, his intention was to seek a review of the Decision of the Board and not the decision of the Director in the Notice. At the hearing, after the procedural history of his claim was explained to him, the Applicant confirmed that was his intention. Accordingly, on its own motion the Court amended his Form 86 making the Board the proposed respondent and its Decision the decision in respect of which relief is sought.   

Background

2.  The Applicant is a Nepalese national, now aged 33. He arrived in Hong Kong on 19 January 2016 and overstayed since 27 January 2016. On 3 February 2016, he surrendered to the Director. Then he lodged a non-refoulement claim on 27 May 2016. In due course, his claim was assessed on all four applicable grounds under the Unified Screening Mechanism (the “USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4] and rejected by the Director’s Notice. His appeal against the Notice was dismissed by the Board’s Decision. He now applies for leave to apply for judicial review of that Decision.

The Applicant’s case

3.  The Applicant’s personal background, the basis of his claim, the arguments he advanced, the finding of the Board and the reasons for its Decision are set out in details in the Board’s Decision. These will not be repeated here. The hyperlink to the Board’s Decision is included below[5] for reference. In gist, he claims he will be harmed or killed, if returned to Nepal, by the family of the victim injured by him in a traffic accident for not paying compensation to the victim.

4.  His case is that while driving his motorbike on the Baglung Pokhara Highway in November 2015, he accidentally hit and injured the elderly victim. He panicked and left the scene without making a report. He did not return home, but drove eleven hours to hide in Kathmandu. However, unknown to him then, he had dropped his wallet containing his identity information at the scene of the accident. The police subsequently located his parents. The victim was hospitalized for a month. The Applicant’s parents visited the victim in the hospital three times to discuss compensation. The victim asked for one or one and a half million Nepalese rupees and threatened something bad would happen to the Applicant if the Applicant or his parents did not pay. Out of fear, the Applicant fled Nepal after two months. He heard from his family that the victim’s son was well connected and can do whatever he wanted to him if he returned to Nepal.

The finding of the Board

5.  The Board accepted the Applicant’s account that he was involved in a traffic accident as largely credible, but did not believe he left Nepal to avoid any risk of harm from the victim’s family. The Board noted that the Applicant came from a rather well off family, but the victim and his family members did not appear from the Applicant’s description to be people of status, means and/or power. The Board found it difficult to believe that the Applicant or his family can in any way feel threatened by the victim’s family. It considered the Applicant’s fear that the victim’s brother was well-connected and could do anything to harm him unsupported by objective evidence. It also noted that the Applicant and his parents had never been harmed or injured by the victim’s family. It found the victim’s family had no intention to harm the Applicant or his family.

6.  On the basis of authoritative and credible country of origin information (“COI”), the Board was satisfied that adequate state protection would be available to the Applicant on his return to Nepal and that he could avoid the risk of harm by internal relocation. It therefore did not accept the Applicant would face any genuine and substantial risk of being subjected to death or ill-treatment upon his return to Nepal.

7.  Applying the law applicable to the non-refoulement protection under the USM to the facts found, the Board came to the conclusion that the Applicant had failed to establish the factual basis to support his claim for protection under any of the applicable grounds under the USM. Hence, it dismissed his appeal against the Director’s Notice.

Legal principles applicable to judicial review

8.  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[6].

Grounds for judicial review

9.  The Applicant did not advance any grounds for judicial review in his Form 86. In his supporting affirmation, he alleged that the Board’s Decision is unfair and unreasonable, but gave no particulars. However, at the hearing, after the legal principles in the preceding section were explained to him, he confirmed he had no complaints about errors of law, procedural unfairness and irrationality. He only asked the Court to consider his claim afresh. For reasons as explained above, it is not open to the Court to do so in an application for judicial review. In the absence of proper grounds or grounds with adequate particulars, the Court in an application for leave to apply for judicial review could only focus its attention on these vitiating elements in its anxious scrutiny of the Decision.

Overall scrutiny

10.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles applicable to non-refoulement protection under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness. The Board analysed the evidence carefully, tested it against common sense and inherent probability. It accepted the Applicant’s case about the traffic accident as largely credible, though it doubted if the accident occurred in November 2015 and doubted why after the accident and not knowing that he had dropped his wallet, he drove for eleven hours straight to Kathmandu instead of to Pokhara where he could continue with his Indian Army recruitment procedure. Even putting those doubts aside, it found on the basis of the Applicant’s evidence that the victim’s family had never harmed him and his parents and had no intention to do so. It also found adequate state protection and internal relocation feasible to mitigate or avoid any possible risk of harm. The Board gave reasons for its finding. It was on that basis that the Board found the Applicant had failed to establish the factual basis to support his claim for non-refoulement protection under any of the four applicable grounds under the USM. Thses are mixed finding of fact and of the law. Insofar as these are finding of the law, they are absolutely correct. Insofar as these are finding of fact, they are exclusively within the realm of the Board, which the Court in a judicial review will not interfere, save when such finding was made as result of error of law or procedural unfairness or irrationality in the Decision. The Court could detect no error of law or procedural unfairness in the Decision. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. Basically, the Applicant had failed to discharge his burden of proving his fears and risks. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success.

Conclusion

11.  For the above reasons, on its own motion, the Court amended the Form 86, but the leave application as amended is refused.

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