PRADIP KHADGI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 105/2022

[2026] HKCFI 2236

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 105 of 2022

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

1.   Form 86 be amended, naming only the Torture Claims Appeal Board/ Non refoulement Claims Petition Office as the Putative Respondent and the Director of Immigration as the Putative Interested Party.

2.   Extension of time for the application for leave to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dated 10 November 2014 be refused.

3.   The application herein for leave to apply for judicial review be dismissed.

Observations for the Applicant:

Introduction

1.  By Form 86 filed on 31 January 2022, the Applicant seeks leave to apply for judicial review (the “Leave Application”) of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board”) dated 10 November 2014 (the “Board’s Decision”).  By that decision, the Board confirmed the decision of the Director of Immigration dated 20 June 2014 (the “Director’s Decision”)[1], which had rejected his non-refoulement claim under the Unified Screening Mechanism (USM).

2.  The Applicant’s background, the basis of his claim and the arguments he advanced had been set out in detail in the Board’s Decision.  It is not necessary for me to repeat the same here.  The Board’s Decision is contained in the hyperlink[2] below.

3.  The Applicant attended the oral hearing scheduled before me but simply repeated his position that he does not agree with the Board’s Decision.

Discussion

4.  The Leave Application was lodged out of time under Order 53 rule 4 of the Rules of High Court, Cap 4A.

5.  In considering whether to extend time, the Court shall have regard to (1) the length of delay; (2) the reason for delay; (3) the merits of the intended application; and (4) any prejudice that may be occasioned to the applicant if leave is refused as against the prejudice to the respondent and the public administration if leave is granted and (5) question of general public importance.[3]

6.  First, the 8-year delay in question is very substantial.  The Applicant has not applied for an extension of time nor provided any explanation for the delay in support of the Leave Application.  He only claimed that he was told he had no grounds for an intended judicial review but he wanted to appeal so he just hid in Hong Kong.

7.  Second, regarding merits, I am not persuaded that the Applicant’s intended application for judicial review is reasonably arguable with any realistic prospect of success. [4]

8.  Judicial review does not operate as a further avenue of appeal.  The Leave Application operates as a “filtering” process and there is no requirement or expectation to give elaborate reasons for my decision.[5]  In seeking to challenge the Board’s Decision, the Applicant ought to have clearly and precisely identified the grounds relied upon in the Form 86 and in his supporting affirmation.  Save for a general assertion that the Board’s Decision is unfair and unreasonable, the Applicant has failed to identify any valid or effective public law grounds.[6]

9.  In view of the seriousness of the issues involved, I have reminded myself of the enhanced standard required by law.  Despite the Applicant did not advance any valid ground for the intended judicial review, I have scrutinized the Board’s Decision for any errors of law, procedural unfairness or irrationality.

10.  The primary decision makers are the Director of Immigration and the Board and the Court should not usurp the role of the Board.  Assessment of evidence, country of origin information (COI) materials, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director of the Immigration).[7]

11.  The Board was acutely aware of the Applicant’s claim that if he were to return to Nepal, he would be at risk of harm or death because he argued with an unnamed Hindu priest, and interrupted a ritual at the home of that priest.  The Board had assessed the material facts and evidence of the Applicant’s claim.  The Board duly took into account the fact that (1) the Applicant could not identify the name of the priest and had no personal knowledge of the priest’s political affiliation; (2) he had never sought help from the police or other authorities before he left Nepal; (3) the Applicant had never been injured; and (4) there was no evidence to show the Hindu priest’s alleged behaviour had any connection with the Nepali authorities. In the circumstances, the Board was entitled to find that on the whole of the evidence, it had not been shown that there was a reasonable likelihood that the claimed fears of the Applicant would materialize.  In any event, the Board did and was entitled to find that internal relocation is viable.

12.  There is simply nothing to indicate the Board had failed to take into account any relevant matters.  I also do not find any error of law or procedural unfairness or irrationality on the part of the Board in the assessment and rejection of the Applicant’s claim.

13.  Finally, I discern no prejudice in refusing to allow the Applicant to proceed with an application that is, in any event, wholly unmeritorious.  Conversely, allowing him to do so would disrupt and undermine the proper administration and cause prejudice to the Putative Respondent.  For completeness, I also do not accept (if so contended by the Applicant) that the matter raises any question of general public importance requiring determination by the Court.

Conclusion

14.  I see no good reason to extend time for the Applicant to apply for leave to seek judicial review.  I accordingly dismiss the Leave 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