LAMA DEV SHREE v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 625/2020

[2025] HKCFI 4031

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 625 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 Torture Claims Appeal Board/Non-Refoulement Claims Petition Office as the Putative Respondent;

2.   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 14 April 2020 (“Form 86”), and a supporting affirmation also dated and filed on 14 April 2020 (“the Affirmation”), she sought leave to apply for judicial review of a decision of the Torture Claims Appeal Board (“TCAB”) (which was also a decision of the Non-Refoulement Claims Petition Office (“NRCPO”)) dated 30 March 2020 (“TCAB Decision”)[1], which was exhibited to her Affirmation.

2.  I will use the abbreviations and definitions from the TCAB Decision unless otherwise specified herein.

3.  The Applicant sought an oral hearing of her application. She appeared at such and said she had nothing to add.

4.  I have amended the Form 86 to properly identify the putative respondent.

Background

5.  This is set out in the TCAB Decision. I will not repeat the contents thereof, but in summary:

a.  The Applicant claimed non-refoulement relief on the basis that if she were sent back to Nepal, she would be ill-treated or killed by Jit Bahadur, Shailendra and Shailendra’s wife, as well as Shailendera’s fellow gang members;

b.  The claim was assessed on the grounds of Torture Risk[2], BOR 2 Risk[3], BOR 3 Risk[4], and Persecution Risk[5] and was rejected by the Director of Immigration (“Director”) in a decision dated 12 December 2018 (“Director’s Decision”);

c.  On 24 December 2018 the Applicant petitioned/appealed to the TCAB/NRCPO, which held a hearing in relation to the Applicant’s non-refoulement claims on 21 May 2019; and

d.  The TCAB/NRCPO handed down the TCAB Decision on 30 March 2020 which found that the Applicant was not entitled to non-refoulement relief on any of the relevant bases and confirmed the Director’s Decision.

Legal Principles

6.  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).

7.  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).

8.  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).

Discussion

9.  The grounds mentioned in the Form 86 are that “the Respondent is in breach of procedural fairness in the following parts”:

a.  “… the Respondent had unlawfully fettered his discretion by refusing the applicant’s appeal on the grounds that they did not satisfy the requirement”. (Ground 1)

b.  “… the Adjudicator acted in a procedurally unfair manner in dealing with Applicant’s appeal”. (Ground 2)

c.  “…the Respondent’s decisions to refuse the Applicant’s appeal on (sic) were unreasonable or irrational in the public law sense, or are a result of procedural errors or unfairness” (Ground 3); and

d.  “… the Respondent failed to meet the greater care and duty owed to a self-represented claimant” (Ground 4).

10.  The Form 86 and the Affirmation also make the following allegations:

a.  The Applicant was not given a fair opportunity to put forward her submissions in an oral hearing nor was she invited to submit written submissions. Furthermore, “When the Applicant filed in the Appeal Form, the Applicant was only asked to write grounds for appeal but that will not count as an opportunity to reply to submissions made by the representatives of the [Director]”; (Complaint 1) and

b.  The TCAB had “significantly relied on the source of news which is not officially recognized or it is simply hearsay. They have also relied on some cases which are fairly outdated considering the dramatic changes.” In the Affirmation it is further said that “The lack of credible source of information has resulted in them making groundless speculations that it is safe for him to return back to my country of origin”; (Complaint 2)

11.  Grounds 1 to 4 are merely generic, vague, and unparticularised assertions using selected keywords and phrases without reference to any underlying facts or matters establishing why, how, and where each of those complaints arise in relation to the TCAB Decision. They are hence entirely inadequate as general assertions or propositions of law without particulars are not effective grounds to support a judicial review and cannot assist an applicant (Re Mizan Sikder [2019] HKCA 20 at §17; Re Aziz Nasir [2019] HKCA 578 at §17; Re Kharsu Numan [2019] HKCA 626 at §24; Re Salim Ahmed [2020] HKCA 244 at §20; Haider Khalil [2021] HKCA 223 at §16).

12.  However, given the seriousness of the issues at hand and the allegations in Complaints 1 and 2, I have considered the TCAB Decision with rigorous examination and anxious scrutiny, applying the enhanced Wednesbury standard and bearing in mind the need for a high standard of fairness.

13.  The TCAB/NRCPO set out the Applicant’s biological, procedural, and immigration history (Paragraphs 1 to 6), followed by what had happened at the hearing (Paragraph 7), principles relevant to assessment of each of the four types of risk (Paragraphs 8 to 21) and the Applicant’s case (Paragraphs 22 to 30).

14.  The decision-maker concluded that while the Applicant’s accounts of events was credible (Paragraph 31), there was no genuine and substantial risk that she would be harmed or killed by Jit Bahadur, or by Shailendra and his wife and their people and meaningful state protection was available, having regard in particular to the COI that had been referred to in the Director’s Decision (Paragraphs 32 to 37). Furthermore, even if there was a real risk of harm, she could relocate internally within Nepal to lower the risk (Paragraphs 38 to 39).  The TCAB/NRCPO then concluded (having regard in particular to its earlier findings) that the Applicant had failed to make out each of the four types of risk, dismissed the appeal, and confirmed the Director’s Decision (Paragraphs 40 to 44).

15.  I do not, from my 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 that is sufficient to vitiate the TCAB Decision, even taking into account Grounds 1 to 4 and Complaints 1 and 2, either individually or cumulatively.  This is especially so as to the assessment, reasoning, and findings regarding the risk of harm, state protection, internal relocation, Torture Risk, Persecution Risk, BOR 3 Risk, and BOR 2 Risk, which are all matters primarily within the province of the decision-making body.

16.  As to Complaint 1 in particular that (whether on its own or in conjunction with any of Grounds 1 to 4) does not raise any reasonably arguable error of public law.  It was for the Applicant to establish her claims before the decision-maker. If she had further submissions to make (including in response to the Director’s submissions) to the decision-maker, she could have done so at the oral hearing. It is baseless to suggest that the Board had to invite her to do so before she would do the same, or that she was somehow deprived of some opportunity to make meaningful submissions. A fortiori when she had ample time since the Director’s Decision to prepare for the oral hearing, there was no indication that the Applicant complained at the hearing about these matters[6], and when she has not provided any specifics of how this apparently prejudiced or tainted (so as to vitiate) the conduct of the hearing or the TCAB Decision.

17.  Nor do I see any reasonably arguable ground for judicial review arising in relation to Complaint 2, whether on its own or in conjunction with any of Grounds 1 to 4. The Applicant has not identified what source of news or cases relied on was/were alleged to be “not officially recognized”, hearsay, or outdated, or how such are sufficient to vitiate the TCAB Decision. In any case, there was no complaint about such at the oral hearing. Nor can I discern any public law error in the decision-maker’s approach and conclusions as to COI, including in particular at TCAB Decision Paragraphs 35 to 39.

18.  There is hence no basis for the court to intervene by way of judicial review, and I am not satisfied that there are any reasonably arguable grounds for judicial review which enjoy a realistic prospect of success.

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