DHAN BAHADUR MAGAR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1510/2020

[2025] HKCFI 3153

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1510 of 2020

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;

Leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

Introduction

1.  By Form 86 filed on 16 July 2020 (the “Form 86”), the Applicant applied for leave to apply for judicial review (the “Leave Application”) against the decision of the Torture Claims Appeal Board / Non refoulement Claims Petition Office (the “Board”) dated 5 June 2020 (the “Board’s Decision”) in which the Board rejected the Applicant’s claims for non-refoulement on all applicable grounds.

Background

2.  The Applicant is a national of Nepal. His non-refoulement claim is premised on his fear that he would be seriously harmed or killed by Maoist groups and the Nepali government if he returns to Nepal. His detailed personal background, the relevant facts and procedural history have been sufficiently set out in the Board’s Decision, which can be assessed through a hyperlink[1], and I shall not repeat the same herein.

Discussion

3.  In a judicial review, this court does not act as a further avenue of appeal. Though in non-refoulement case an enhanced standard in scrutinizing the decision of the Board is required given the seriousness of the issue at hand, this court should not usurp the role of the Board, which together with the Director of Immigration 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 Board (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 & Anr (2007) 10 HKCFAR 676).

4.  In the Form 86 and his supporting affidavit, the Applicant only made a general assertion that the Board’s Decision was incorrect. He did not point to any error of law, procedural unfairness or irrationality of the Board’s Decision. Although he claimed in the affidavit that he would “soon” submit additional grounds in support of his claim. None has been so submitted notwithstanding the lapse of about 5 years since this leave application was made.

5.  The Applicant requested an oral hearing and he attended an oral hearing before me on 15 July 2025. At the Hearing, the Applicant confirmed with me that he had nothing to add.

6.  Looking at the Board’s Decision, the Board has considered the Applicant’s case in light of available evidence including pertinent Country of Origin information (§§20-37), noting in particular that the political situation in Nepal had in fact changed fundamentally and the Maoist joined a peace accord with the government and ended its decade long insurgency.

7.  The Board then proceeded to analyse each of the applicable grounds under the USM, identifying in each instance the correct legal principles (§§8-19), and came to the conclusion that none was made out (§39, 43-60). Further, the Board concluded that reasonable state protection (§§40-42) and internal relocation options were in any event available to the Applicant having regard to his personal circumstances as an able-bodied adult with a reasonable level of education (§§61-65).

8.  All in all, I do not see any errors of law, procedural unfairness or irrationality (in the enhanced Wednesbury sense) in the Board’s Decision, despite rigorous examination and anxious scrutiny.

Conclusion

9.  For the above reasons, leave is accordingly 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