TAMANG RAM BAHADUR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 547/2021

[2026] HKCFI 216

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 547 of 2021

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 the documents and oral submissions by the Applicant in open court;

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

Observations for the Applicant:

Introduction

1.  By a Form 86 dated 19 April 2021 (the “Form 86”), the Applicant applied for leave to apply for judicial review against the decision by the Torture Claims Appeal Board (the “TCAB”) dated 31 March 2021 (the “TCAB Decision”), which affirmed the decisions of the Director of Immigration (the “DOI”) dated 17 September 2020.

2.  The Applicant requested for a hearing of this application and he attended the same. When asked if he had anything to add, he said that son was attacked in Nepal relating to the same previous case (see below), but the proof, namely, photos of the attack, were in his broken phone. When probed further, he said that the incident happened in 2024 and the phone was also broken in 2024. When asked why he did not retrieve the photo for the whole year, he first said because it happened 1 year ago, but then said that he had in fact thrown the phone away, and confirmed that he would not submit any further documentary proof in this respect.

Background

3.  The Applicant was a Nepalese national. In gist, he claims that his life is in danger in Nepal because the Maoist political party had threatened to kill him as soon as he returned. The animosity apparently arose as his former wife demanded half of the Applicant’s wealth in 2014 after learning his remarriage, and his former wife’s brothers/family were affiliated with Biplav and a Colonel Adhikari. The Applicant’s personal background, the relevant facts and relevant procedural history have been sufficiently set out in the TCAB Decision, which can be viewed through a hyperlink.[1]  I shall therefore not repeat them. Unless otherwise specified, TCAB’s abbreviations and descriptions are adopted herein.

Discussion

4.  The leave application operates as a filtering process and there is no requirement or expectation to give elaborate reasons for my decision: Re Zunariyah [2018] HKCA 14 at [23]. It is sufficient to state my observations after considering the TCAB Decision and the materials adduced by the Applicant.

5.  I remind myself that in a judicial review, this court does not provide a further avenue of appeal. While I also remind myself that in non-refoulement cases, I would adopt an enhanced standard in scrutinizing the decision of the TCAB given the seriousness of the issue at hand, this court would not usurp the role of the TCAB, which together with the DOI are the primary decision-makers. A finding of fact is exclusively within the realm of the TCAB, and 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 TCAB: Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(1)]. There must be a reasonably arguable case with a realistic prospect of success before leave for judicial review will be granted: Peter Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

6.  In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly: Ho Loy v Director of Environmental Protection (unreported, HCAL 21/2015, 22 December 2016) at [142], and further to make full and frank disclosure of all material facts to be verified by an affidavit.

7.  The Applicant did not state any grounds on which the relief is sought, and hence did not point to any error of law, procedural unfairness or irrationality of the TCAB Decision in the Form 86.

8.  As can be seen from the TCAB Decision, the TCAB took into account all the evidence available [26-86] and found that on the basis of the same, applying the correct legal principles in respect of all applicable grounds under the Unified Screening Mechanism, the Applicant’s allegations were insufficient to make out any of the applicable grounds [87-96]. It is noteworthy that in the TCAB’s meticulous and extensive analysis, it was found that the centerpiece of the Applicant’s case did not stand up to scrutiny. Given that the Applicant in fact owned nothing much at all relevant times and the dispute was essentially personal, the TCAB was correct to come to the conclusion that it was very unlikely that he would be subject to any serious harm after so many years should he be refouled to Nepal [79-83]. Importantly, it was also found, inevitably, that the Applicant, being able-bodied and had prepared to leave his family at home, could readily relocate to other places in Nepal or even India [84-86].

9.  Regarding Applicant’s submissions at the hearing, I have carefully considered them. They do not assist his application. If there are changes in the circumstances or new information that are material to his case for non-refoulement, an applicant may consider providing the information or new evidence to the Director of Immigration, who is the primary decision maker, pursuant to section 37ZO(2) of the Immigration Ordinance, Cap. 115. Such matters are not relevant to the present application (Amandeep Kumar v Torture Claims Appeal Board [2019] HKCA 1369 at §13; Poinem v Torture Claims Appeal Board [2020] HKCA 911 at §15). I observe that the TCAB noted that similar events had been alleged to have happened before, and had thoroughly considered them e.g. [81]. It is improbable that the Director would come to a different view.

10.  All in all, I do not see any errors of law, procedural unfairness or irrationality in the TCAB Decision, despite rigorous examination and anxious scrutiny. The Applicant’s intended challenge to the TCAB Decision is not reasonably arguable, and accordingly the application for leave to apply for judicial review is 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