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

HCAL 479/2020

[2025] HKCFI 3675

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 479 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 Director of Immigration as the putative Interested Party, and adding “Decision of Non-Refoulement Claims Petition Office” before the words “08/11/2019”;

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

Observations for the Applicant:

Introduction

1.  The Applicant is a national of Nepal. By a Form 86 dated and filed on 1 April 2020 (“Form 86”), which was accompanied by a supporting Affirmation also dated and filed on 1 April 2020 (“the Affirmation”), he sought leave to commence a judicial review of a decision dated 8 November 2019, which is one of the Non-Refoulement Claims Petition Office (“NRCPO”) (“NRCPO Decision”) [1]. I will use the abbreviations and definitions from the NRCPO Decision unless otherwise specified herein.

2.  The Applicant did not seek an oral hearing of his application. I have hence dealt with such on the papers.

3.  I have therefore amended the Form 86 of my own motion to reflect the identity of the proper putative Interested Party, and the nature of the decision.

Background

4.  The Applicant’s background and case as to the incidents underlying his claim for non-refoulement relief, and the immigration and procedural history leading up to the NRCPO Decision, are set out in the latter decision and in the TCAB USM 3172 Decision (defined below). I will not repeat them but, in essence:

a.  The Applicant’s claim for non-refoulement relief stems from a fear that he will be harmed or killed by his family members and his wife’s family due to inter‑caste marriage as there is disapproval of his marriage to his wife Bipana Ranjit (“Bipana”);

b.  The Applicant’s claim was assessed on the basis of Torture Risk[2], BOR 3 Risk[3], and Persecution Risk[4] and was rejected as not being substantiated in a decision of the Director dated 12 February 2016 (“Director’s 1^st Decision”);

c.  On 25 February 2016 the Applicant filed a Notice of Appeal/Petition as regard the Director’s 1^st Decision to the TCAB/NRCPO, which held an oral hearing on 26 September 2016 (“USM 3172 Hearing”) at which the Applicant gave evidence;

d.  The TCAB/NRCPO rejected the Applicant’s claims that he faced BOR 3 Risk, Persecution Risk, or Torture Risk in a decision dated 15 December 2016 (“TCAB USM 3172 Decision”)[5]. It does not appear that any further steps were or have been taken by the Applicant in relation to the TCAB/NRCPO Decision;

e.  In relation to a letter from the Director dated 14 March 2017 concerning BOR 2 Risk[6], the Applicant (with the benefit of assistance from the Duty Lawyer Service) claimed in April 2017 that he was a victim of human trafficking. His claim on BOR 2 Risk was thereafter rejected on 26 April 2017 by a decision of the Director (“Director’s Further Decision”); and

f.  The Applicant petitioned to the NRCPO for relief against the Director’s BOR 2 Decision. The NRCPO was constituted by the same adjudicator who had made the TCAB USM 3172 Decision.

5.  The NRCPO determined the Applicant’s petition without a hearing in the NRCPO Decision, finding that the Petitioner had failed to establish BOR 2 Risk, and rejecting his claim for non-refoulement relief thereunder. It dismissed the petition and confirmed the Director’s Further Decision.

6.  As the 3-month deadline under RHC O. 53 r. 4(1) had expired on 8 February 2020, the application was filed some 7 weeks out of time. The Applicant has not given any explanation for this.

Legal Principles

7.  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).

8.  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).

9.  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).

10.  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:

a.  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[7] (iii) the merits of the substantive application[8] (iv) prejudice, and (v) whether the application raises questions of general public importance;

b.  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;

c.  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

d.  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

11.  The Applicant did not draw to my attention any explanation for his undue delay and why he filed the application for leave some 7 weeks out of time, and there is not even a request for an extension of time to make the application in the Form 86. However, and given the unusual circumstances at the time[9], I am prepared to approach the matter of delay on the basis that the delay was one of around 2 weeks.

12.  The Form 86 mentions that “As my case was not heard in clear problems of me torture claim was dismissed so I need to apply for judicial review”, while the Affirmation says that “As my case was reached with not a(sic) accurate decision according to my case”, and requests that the court “please look into my case as the [NRCPO Decision] has not shown any interest in my case.” Such, insofar as they can be understood, appear to complain that the NRCPO reached the wrong decision on the merits, and to request this court to consider the matter afresh. If so, given the nature of judicial review this complaint is misconceived and stands only to be rejected. In any case, they are merely vague and unparticularised in the extreme and do not refer to any underlying facts or matters establishing why, how, and where each of those complaints arise in relation to the NRCPO Decision, let alone whether and how any such allegations relate (if at all) to public law errors such as procedural unfairness in relation to, any error of law in, and/or any irrationality/failure to meet the enhanced Wednesbury test in, the NRCPO Decision.

13.  Nevertheless, and given the seriousness of the issues at hand, I have considered the NRCPO Decision with rigorous examination and anxious scrutiny, applying the enhanced Wednesbury standard, and bearing in mind the need for a high standard of fairness, to see if there was any procedural unfairness, error of law, and/or any irrationality/failure to meet the enhanced Wednesbury test, which vitiates the NRCPO Decision. In the process I have borne in mind the aforesaid allegations of the Applicant, assuming that they advance a vague and unparticularised complaint of procedural unfairness and/or irrationality relating to the fact that the NRCPO dealt with his petition without a hearing.

14.  The NRCPO Decision outlined the relevant procedural and immigration history, as well as the Applicant’s background, noting in particular the existence of the TCAB USM 3172 Decision (Paragraphs 1 to 19). It is clear that the TCAB USM 3172 Decision was before and was considered by the NRCPO, as was the fact that an oral hearing had been held in reaching such (Paragraphs 3, 18, 19 and 28).

15.  There was then a reference to the contents, standard, and burden of proof in relation to BOR 2 Risk (Paragraphs 20 to 22) and then to various COI relating, in particular, to caste-based discrimination and the threat from Maoists (Paragraphs 23 to 25).

16.  The TCAB/NRCPO then turned to the additional information lodged by the Applicant, stating that it had considered such, and that they did not enhance the status of his claim, hence a second oral hearing was not necessary to assist in the Applicant’s case. The NRCPO set out its reasons for reaching these conclusions. In doing so, it referred to relevant conclusions reached in the TCAB USM 3172 Decision, then explained its views on the contents, effect, and authenticity (or otherwise) of the evidence and documents before it, ultimately not accepting (on the evidence and COI as a whole) that the Applicant’s life would be threatened upon his being refouled to Nepal and that internal relocation was available. The NRCPO also concluded that the human trafficking allegations did not support a claim to right to life and BOR 2 Risk, as there was no relevant danger to his life established thereby (Paragraphs 26 to 29). The decision-maker then rejected the claim for non-refoulement on the basis of BOR 2 Risk, dismissed the appeal/petition, and affirmed the Director’s Further Decision (Paragraphs 29 to 31).

17.  I do not, from my aforesaid examination and scrutiny, see that the Applicant has any reasonably arguable case that there was procedural unfairness (bearing in mind the need for a high standard of fairness), an error of law, and/or irrationality/failure to meet the enhanced Wednesbury test vitiating the NRCPO Decision. In particular:

a.  The findings and determinations from the TCAB USM 3172 Decision, in particular those relating to risk of harm, BOR 3 Risk, and internal relocation, were and would have been the starting point in considering BOR 2 Risk (see e.g. Paragraphs 45, 46, 53, 56 to 58, 62, and 66 thereof), such that the Applicant’s claim based on BOR 2 Risk was bound to fail absent additional information affecting those earlier conclusions (See RM v Muttrie (HCAL 166/2015, 3 March 2016) M. Ng. DHCJ. (as she was then) at §52; Kulwinder Kaur [2022] HKCA 49 at §59, Sandhu Vinny [2022] HKCFI 2327 at §§24-26; Sandhu Vinny [2023] HKCA 1261 at §§30, 32-33); and

b.  The additional documents and matters raised by the Applicant were considered and assessed by the NRCPO which (as the primary decision-maker) referred to relevant matters and evidence in assessing BOR 2 Risk. I see no public law error in the process of assessment (including in the NRCPO’s decision not to hold a hearing) and/or tainting the conclusions that it had reached, in particular those relating to the risk of harm and internal relocation. A fortiori when the Applicant has not identified any specific prejudice/effect and/or irrationality relating to such.

18.  I am not therefore not satisfied that there are any reasonably arguable grounds for judicial review which enjoy a realistic prospect of success. I also 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. In the circumstances, I therefore see no good reason to extend time for leave to apply for judicial review, and do not consider that I should grant such an extension. I hence refuse to grant such an extension and to grant leave to apply for judicial review.

Conclusion

19.  In the circumstances I have ordered that the application for leave to apply for judicial review be dismissed and made the other orders above.

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