KRISHNA BAHADUR THAKURI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1788/2020

[2025] HKCFI 4643

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1788 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 Applicant’s Form 86 should be amended to name only the TCAB as the putative respondent, only the DOI as the putative interested party and the TCAB Decision as the decision sought to be reviewed; and

2.   The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

Introduction

1.  By a form 86 filed on 8 September 2020 (the “Form 86”), the Applicant applied for leave to apply for judicial review of a decision by the Torture Claims Appeal Board (the “TCAB”) dated 19 June 2020 (the “TCAB Decision”) as well as a decision by the Director of Immigration (the “DOI”) dated 20 April 2017, which refused the Applicant’s non-refoulement protection claim and was affirmed by the TCAB Decision.  He named the TCAB and DOI both as proposed respondents, and named the TCAB and the Immigration Department both as interested parties.

2.  As only the TCAB Decision is amenable to judicial review, I amended the Form 86 accordingly and named only the TCAB as the putative respondent and only the DOI as a putative interested party.

3.  The TCAB Decision only concerned the Applicant’s claim on the basis of BOR2 risks as his application on the other applicable grounds under the USM had been made and refused by the DOI in 2015.  The refusal was affirmed by the TCAB in 2017.

4.  The Applicant requested for a hearing and he attended the same.  When asked if he had anything to add he confirmed that he had not.

Background

5.  The Applicant is a national of Nepal.  He seeks non-refoulement protection on the basis that he would be harmed or killed by people of a certain political affiliation for failing to make a donation they forced him to promise.  His personal background, the relevant facts and relevant procedural history have been sufficiently set out in the TCAB Decision, which can be assessed through a hyperlink[1], and I shall not repeat the same herein.

Discussion

6.  In a judicial review, this court does not provide a further avenue of appeal.  Though in non-refoulement case an enhanced standard in scrutinizing the decision of the TCAB is required given the seriousness of the issue at hand, this court should not usurp the role of the TCAB, which together with the DOI are the primary decision-makers.  This 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 (Nupur Mst v Director of Immigration [2018] HKCA 524, [14(1)]).  There must be a reasonably arguable claim with a realistic prospect of success before leave for judicial review will be granted (Peter Po Fun Chan v Winnie Cheung & Anor (2007) 10 HKCFAR 676).

7.  In his affirmation filed in support of this application, the Applicant complained that he was not even aware of the invitation to submit further information for assessment of his claim under the BOR2 ground given his language limitation and that it was unfair that his claim was refused without screening or his participation.

8.  However, this supporting affirmation was prepared in English and I see no interpretation clause therein; this goes against the language limitation asserted by the Applicant.  Further, despite asserting unfairness on the basis that he deprived of the opportunity to submit further evidence, there was no further evidence adduced in the supporting affirmation or when asked if he had anything to add at the hearing before me; this goes against the complaint that he would have had further evidence to submit or submissions to make had he been given the opportunity.

9.  With the above in mind I turn to the TCAB Decision, which was reached without an oral hearing [11].  As recorded therein, the DOI had invited the Applicant to submit further facts relevant to the BOR2 ground but never got any response from the Applicant [3].  According to the DOI’s decision of 20 April 2017, the invitation was contained in a letter dated 31 March 2017 sent to the Applicant.  The DOI’s decision, contained in a letter dated a mere 20 days later, was sent to the Applicant’s address at Kim Tak Building on Nathan Road.  There can be no dispute that the Applicant received this decision, because he filed an appeal against it to the TCAB on 31 May 2017, and in fact stated the same correspondence address in the notice of appeal.

10.  I therefore do not accept that the Applicant did not receive the letter inviting him to submit further facts for the purpose of a BOR2 claim assessment, which given the circumstances must have been also sent to his correspondence address at Kim Tak Building on Nathan Road.

11.  Further, I do not accept that his English language ability had prevented him from understanding the invitation so as to cause him to not put forth further evidence or submissions, because (a) he prepared the supporting affirmation in English apparently without any assistance from an interpreter, (b) when attending the hearing before the TCAB in 2017 for appeal against the refusal on the other three grounds, the Applicant was able to give evidence, deal with cross-examination of him and make closing submissions acting in person, all without any indication in that TCAB decision that there was an interpreter to assist the Applicant at the hearing, and (c) when given the opportunities again, in preparing his affirmation in support of this application and at the hearing before me, the Applicant did not put forth any further evidence or submissions.

12.  On the basis of the above, there can be no valid complaint on the ground of inability to submit further evidence or submissions for the purpose of the BOR2 claim that culminated in the TCAB Decision.  The Applicant chose to ignore the invitation to do so and the TCAB, applying the correct principle in this regard [11-12], could not be faulted in proceeding to determine the appeal on paper in the absence of any further evidence or submissions.

13.  The above aside, the TCAB had took into account the materials placed before it [6-10], applied the correct principles [14-17], and thoroughly analysed the Applicant’s case before coming to the conclusion that the BOR2 ground was not made out [18-19].

14.  I do not see any error of law, procedural unfairness or irrationality in the TCAB Decision, despite rigorous examination and anxious scrutiny.

Conclusion

15.  For the above reasons, I am not satisfied that this court should intervene by way of judicial review.  I therefore dismiss the application.

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