PUN TUK BAHADUR v. TORTURE CLAIMS APPEAL BOARD

HCAL 88/2020

[2025] HKCFI 2496

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 88 OF 2020

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 in open court;

1.  On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board”.

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

3.  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 8 January 2020 and filed on 9 January 2020, 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 13 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/2020/HCAL000088_2020_files/the_Board's_Decision.pdf

2.  The Board decided that the applicant had not substantiated a case on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board dismissed the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 21 September 2018 (“the Director’s Decision”) and confirmed the Director’s Decision, which rejected the applicant’s claim for non-refoulement protection.

3.  In Form 86, the applicant wrongly put the date of the Director’s Decision as 21 December 2018 when it should be 21 September 2018. There was in fact no decision made by the Director on 21 December 2018.

Amendment

4.  In Form 86, the applicant wrongly named “Torture Claims Appeal Board / Non-refoulement Claims Petition Office” as the putative respondent when only the Board should be the putative respondent. The Non-refoulement Claims Petition Office is just an office providing administrative and secretariat support to the adjudicators of the Board and should not be named as a putative respondent at all.

5.  Thus, on this court’s own motion, the name of the putative respondent is amended to “Torture Claims Appeal Board”.

The applicant’s case

6.  It is not necessary for this court to repeat the details of the applicant’s case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above.

7.  In sum, the applicant claimed for non-refoulement protection because he was an active supporter of the Nepali Congress Party (“NCP”), and if refouled to Nepal, he would be harmed or killed by members of the Unified Marxist Leninist Party (“UML”), which was the opponent of NCP.

Oral hearing

8.  The applicant requested for an oral hearing of the Leave Application and his case was heard on 27 March 2025.

9.  The applicant confirmed to this court that he had presented all the grounds for his intended judicial review in his Form 86 and supporting affirmation dated 9 January 2020 and had nothing to add.

Withdrawal after the oral hearing

10.  However, after the hearing, the Immigration Department sent a letter dated 11 June 2025 to inform this court that the applicant had written a letter dated 15 May 2025 to withdraw his judicial review application. As stated in the applicant’s said letter, the reason he gave for this withdrawal application was that he wanted to return to his home country as soon as possible, the issues in his home country had been resolved and he could return home.

11.  There is no evidence to show that the applicant made the said 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.

12.  However, 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.”

13.  Thus, it is right for this court to deal with the Leave Application instead of leaving the action at large. The applicant’s application to withdraw the Leave Application is therefore refused, and this court will proceed to consider the merits of the Leave Application.

Grounds for judicial review

14.  The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).

15.  The applicant annexed a document to Form 86 with the title “Grounds on which Relief is sought”. The contents of this document are reproduced as follows:-

“1. I believe that the Director of Immigration and the Adjudicator of Appeal Board reached the decision wrongly in assessing my Non-refoulement claim. I believe the decisions were not reasonable and fair (as required by the Wednesbury test). Indeed, the right to life is protected under Article 28 of the Basic Law and Article 2 of the Bill of Rights. In practice, the right to life is mainly protected by the criminal law and it must be protected from extra-judicial killings that I may face if I am deported back to my country.

2. From the Director’s Decision, it is evident that the director has failed to appreciate or give the proper importance or weightage to the presence of state Acquiescence in my case. This has indeed led to an unfair outcome of rejecting my non-refoulement claim. I was tortured at the Behest and the state law enforcement agencies as well as those in the high ups of political circles. It is submitted that the state would be rendered liable to me by cause of the state and its public officials failing to provide reasonable protection for its citizens under the duty of due diligence.

3. The Adjudicator acted unreasonable and was procedurally unfair by placing too much reliance on Country of Origin Information but failed to take my personal background and experience into account. Further, I submit that although the Director had listed relevant COIs which support the aversions that the police in my country would not be able to protect. The Director failed to consider or give enough weightage to those evidence and ruled otherwise.

4. I submit that the Director has failed to take such argument into account or that the Director has failed to give enough weight to such argument before reaching the Decision. This was a clean case of unfair attitude shown by the Director which in itself is enough to render his Decision void. In Fact, the corruption and incompetency of the administration in my country is still a very serious problem. Various human rights organization has complied reports on the matter which stated testament to my assertions.

5. Further, the director has failed to attain the high standard of fairness required by the Wednesbury test in the decision with the arguments put forward above. As such, the decision of the director should be considered unreasonable in the scope of Public Law.

6. The Adjudicator was procedurally improper and/or unfair when assessing whether to accept or not to accept explanations provided by me, and unreasonably requires me to response to questions that I was not in a position to offer any response. The Adjudicator failed to take into account the nexus of political parties and official corruption which exists in my country, making the persecution effectively persecution by the State.

7. The Adjudicator made a ruling to dismiss my appeal/petition in the Torture Claims Appeal Board/Non-refoulement Claims Petition Office based on findings which the Adjudicator ought to allow the appeal/petition, and thus the Decision was irrational.

8. I humbly ask this Honorable Court to grant leave to have the Decision judicially reviewed.”

16.  The said document with contents as stated above was in fact used by many applicants in similar applications as their grounds for applying leave to judicially review the Board’s decisions. It is like a template for such applicants and they just used the grounds stated therein without any regard to their own situations. Nevertheless, as the applicant is relying on the above grounds to make the Leave Application, this court will still deal with the grounds as discussed below.

Discussion

17.  First of all, some of the above grounds were directed at the Director. As the Director’s Decision was superseded by the Board’s Decision and is no longer susceptible to judicial review (see Re Moshsin Ali [2018] HKCA 549), the Director’s Decision cannot be the subject matter of the Leave Application. This court will therefore consider only those grounds directed at the Board in respect of the Board’s Decision.

18.  Paragraphs 2, 4 and 5 of the applicant’s grounds were directed at the Director. Hence, they could not be used to challenge the Board’s Decision and can be simply ignored. Paragraph 8 of the grounds was just asking this court to grant leave to have the Board’s Decision judicially reviewed. It is not a ground at all. Thus, only paragraphs 1, 3, 6 and 7 of the grounds are relevant to the Leave Application.

19.  In paragraph 1 of the grounds, the applicant alleged that the adjudicator of the Board reached the Board’s Decision wrongly and it was not reasonable and fair as required by the Wednesbury test. However, the applicant did not state how or why the Board’s decision was wrong, unfair and unreasonable. It does not help the applicant to establish any ground by just mentioning the right to life in paragraph 1.

20.  In any event, the Board did assess the applicant’s risk of right to life. The Board found that the injury the applicant sustained did not attain a minimum level of severity and he had suffered no ill-treatment, physical or mental. The Board did not accept that the applicant would face a genuine and substantial risk of being subjected to ill-treatment. Having considered carefully the applicant’s claim, the Board found that the applicant had failed to establish in evidence a personal and real risk of absolute and non-derogable rights under BOR 2[1] being violated upon his return to Nepal.

21.  In paragraph 3 of the grounds, the applicant alleged that the adjudicator acted unreasonably and was procedurally unfair by placing too much reliance on country of origin information (“COI”) but failed to take his personal background and experience into account. However, the applicant did not state which aspects of his personal background and experience had not been taken into account by the Board.

22.  In fact, the Board did consider the applicant’s personal background and found no evidence that he became a common enemy of UML or that members of UML were still looking for him. The Board also found that the applicant had not been tortured, there was no government officials being involved and there was state protection available to him.

23.  The applicant further alleged in paragraph 3 of the grounds that although the Director had listed the relevant COI which supported the aversions that the police in his country would not be able to protect, the Director failed to consider or give enough weightage to those evidence and ruled otherwise. This is just a vague and general accusation without any specificity.

24.  In fact, the Board did not make any finding that the police in Nepal would not be able to protect the applicant. Instead, the Board mentioned that COI showed that the government or police of Nepal was fighting against the acts of violence within Nepal. It was just that the applicant elected not to report to the police or to the authorities of the Nepalese government. The Board found no evidence that the police or the government authorities deliberately not to take action against members of UML.

25.  In paragraph 6 of the grounds, the applicant alleged that the adjudicator was procedurally improper and/or unfair when assessing whether to accept or not to accept explanations provided by him, and unreasonably required him to respond to questions that he was not in a position to offer any response. This accusation lacks any particulars in support. The applicant did not state which explanations he provided were not accepted by the Board and which questions he was not in a position to offer any response.

26.  There was in fact nothing wrong for the Board to question the applicant extensively to try to understand his claims better and to assess his credibility and his accounts of the events leading to his claim for non-refoulement protection. The questions were necessary for the Board to fulfil its duty of finding of facts in relation to the applicant’s claim. In fact, the applicant was legally represented by a lawyer from the Duty Lawyer Service at the Board’s hearing and he elected to testify. This court finds no fault or unfairness in the Board’s questioning of the applicant at all.

27.  In paragraph 7 of the grounds, the applicant simply alleged that the adjudicator ought to allow the appeal/petition and the Board’s Decision was irrational. There was no particulars or reasons given to say how or why the Board’s Decision was irrational.

28.  As held by the Court of Appeal in Re Salim Ahmed alias MD Salim [2020] HKCA 244, “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”. Thus, none of the aforesaid paragraphs in the grounds could establish any valid ground to challenge the Board’s Decision when they are so vague and general without any requisite particulars related to the applicant’s case.

29.  It is therefore this court’s finding that the applicant has failed to establish any valid ground for challenging the Board’s Decision.

30.  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).

31.  Thus, even though the applicant has failed to establish any valid ground for challenging the Board’s Decision, this court will still scrutinize the Board’s decision for any errors of law, procedural unfairness or irrationality.

32.  In assessing the appeal by the applicant, the Board adopted the approach of a re-hearing. The Board examined all the documentary evidence afresh and held an oral hearing on 30 September 2019. The applicant was present and was legally represented as mentioned.

33.  After due consideration of the law and the evidence as presented by the applicant, the Board found that the applicant was not entitled to non-refoulement protection under any of the applicable grounds under the USM.

34.  Although the Board considered it unnecessary to make any finding on internal relocation, it is a well-recognised principle that the decision-maker only needs to consider internal relocation if the applicant has established that he qualifies as a refugee pursuant to Article 1A(2) of the Refugee Convention (see Robinson v SSHD & Anor [1997] EWCA Civ 3090, dated 11.7.1997). In other words, internal relocation only arises if the applicant has established a real risk of persecution in his home area (see Gardi v SSHD [2002] 1 WLR 2755).

35.  As it is the Board’s finding that the applicant had no real risk of any of the proscribed forms of harm, it is not necessary for the Board to further consider internal relocation.

36.  The finding of facts is solely within the ambit of the Board. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion based on the evidence available to the Board.

37.  Moreover, the applicant admitted in his withdrawal letter dated 15 May 2025 that his issues in his home country had been resolved. It confirms that the applicant does not have any ground for non-refoulement protection at all. Thus, the intended judicial review is simply without any merits.

38.  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 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. 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.

39.  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. It is the view of this court that the applicant has failed to establish such a claim and hence leave must be refused.

Conclusion

40.  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