KHADKA PRAHALAD BAHADUR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2818/2019

[2025] HKCFI 2226

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2818 of 2019

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 the Applicant being absent in open court;

1. The Form 86 is amended on the court’s own motion.

2. The Leave Application be dismissed.

Introduction

1.  By prescribed Form 86 filed on 25 September 2019, the applicant applied for leave to apply for judicial review (“Leave Application”).  The intended judicial review was against the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) dated 5 September 2019 (“Board’s Decision”) dismissing the applicant's appeal against a decision of the Director of Immigration (“Director”) dated 17 January 2017 (“Director’s Decision”) rejecting the applicant's non-refoulement claim.

2.  In his Form 86, the applicant stated a reference number as the proposed respondent, and an address as the interested party. As the Board should have been the proper respondent and the Director the proper interested party, the Form 86 will be accordingly amended on the court’s own motion.

3.  At the applicant’s request for a hearing of the Leave Application, this court scheduled a hearing on 15 April 2025. Before the hearing, a notice of hearing with a reminder[1] of the consequence of absence dated 19 March 2025 was sent to the applicant’s last known address by ordinary post.  The applicant did not turn up at the hearing.  Several phone calls were made to the applicant’s given telephone number before the hearing, but to no avail. The information before this court shows that the said notice of hearing has not been returned undelivered through the post.

4.  In the circumstances, this court will dispose of the Leave Application according to the materials already placed before the court.

Background

5.  The background as taken from the respective decisions of the Director and the Board referred to above can be briefly stated as follows.

6.  The applicant is a national of Nepal. On 2 March 2009, he departed Nepal for mainland China and stayed there for one day.  The applicant surrendered himself to the Immigration Department on 16 March 2009 and raised a torture claim the same day.  Upon enquiry, he claimed that he entered Hong Kong by boat without permission on 4 March 2009.    

7.  In a prior decision dated 28 October 2014 (“Director’s Prior Decision”), the Director considered the applicant’s claim under the grounds of torture risk ^[2], BOR 3 risk^[3] and persecution risk^[4] under the USM^[5], whereas the Director’s Decision considered the claim under the ground of BOR 2 risk^[6].  The claim was based on a fear that if refouled, he would be harmed or killed by Maoist insurgents in Nepal, whom he refused to join.

8.  According to the applicant, there were three incidents in which Maoist insurgents threatened and/or assaulted him and attempted to coerce him to join their insurgency.  The first incident occurred in 2007, in which a group of Maoists forcibly took him from his home to a jungle where they demanded that he either join them or make a donation to them. Upon the applicant’s refusal of their demands, the applicant was beaten up and later became unconscious.  The second incident occurred three months later, in which several of the Maoists forcibly took him from his home to a jungle where they again demanded that the applicant to join them.  They threatened to kill him if he refused.  He was not physically harmed in the second incident.

9.  Two to three weeks later, the third incident occurred, in which a group of Maoists took the applicant to a jungle and again demanded that he join them.  He refused, they then punched him on the face and assaulted him with the handle of a pistol.  He became unconscious as a result of the assault.  After the third incident, his mother advised him to leave his village.  The applicant stayed with a friend in Kathmandu for 15 to 16 days before returning home to stay for a month.  His mother gave him 200,000 rupees and urged him to leave Nepal. He then left for Kathmandu again where he stayed for two or three months before leaving Nepal.

10.  In the Director’s Decision and the Director’s Prior Decision, the Director decided against the applicant’s claim on all applicable grounds.  Hence, the applicant’s appeals to the Board against the Director’s decisions.

11.  In the Board appeal against the Director’s Prior Decision, the oral hearing before the Board was fixed for the morning of 7 August 2015. However, the applicant was absent from the hearing.  The Board proceeded with the hearing in his absence. 

12.  In its decision dated 18 August 2016 (“Board’s Prior Decision”), the Board found that because the Nepalese Civil War and the Maoist insurgency had already ended nine years before, the Board therefore found that there was no real risk of harm in the event of refouelment. The Board also found that internal relocation would be viable.  Thus, the Board dismissed the applicant’s appeal and confirmed the Director’s Prior Decision.

13.  The Board’s Prior Decision is not the subject of the present intended judicial review.

14.  In the applicant’s Board appeal against the Director’s Decision, the Board determined the appeal without an oral hearing. Based on the additional country of origin information (“COI”) submitted by the applicant, the Board concluded that the additional COI submitted by the applicant did not alter the conclusion in the Board’s Prior Decision that there is no real risk of harm and that there was no threat to the applicant’s right to life. The Board therefore dismissed the applicant’s appeal and confirmed the Director’s Decision.

Legal principles applicable to judicial review

15.  As the Courts have repeatedly stated, determination of the merits of a non-refoulement claim is essentially a matter for the Director and the Board, who are the primary decision-makers in the evaluation of the evidence based on the materials available to them.  A court will not usurp their primary decision-making role in a judicial review, which is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh in the absence of any legal error.  A finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

Discussion and conclusion

16.  The applicant’s Form 86 and supporting affirmation did not contain any grounds for seeking relief. 

17.  It is plain that the applicant has not condescended to any particulars, in the Form 86 or otherwise, as to what basis the Board is said to have acted unlawfully or procedurally unfairly in reaching its Decision, or how such Decision could be said to be Wednesbury unreasonable.

18.  The Board’s Decision was arrived at after having carefully examined the applicant’s evidence.  In the Board’s Prior Decision, the Board found that because the Nepalese Civil War and the Maoist insurgency had already ended many years ago, there was no real risk of harm in the event of refoulement. The Board also found that internal relocation would be viable.  In the Board’s Decision, upon considering the additional COI submitted by the applicant, the Board found that the additional COI did not alter the conclusion in the Board’s Prior Decision, and did not lead the Board to believe there was any threat to his right to life.  These are findings of fact, which the court in a judicial review will not interfere with.

19.  Having rigorously examined the Board’s Decision with anxious scrutiny, this court is satisfied that the Board correctly applied the law and the key legal principles relating to all the grounds mentioned above; correctly identified the issues, and observed a very high standard of fairness. I find that it was perfectly open to the Board to come to its conclusion that the applicant failed to discharge his burden of proving the asserted fears and risks.

20.  For these reasons, I am not satisfied that the Leave Application is reasonably arguable with realistic prospects of success such that would enable this court to grant leave: see Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

Orders

21.  The Form 86 is amended on the court’s own motion.

22.  The Leave Application be 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