SHERPA PEMBA v. DIRECTOR OF IMMIGRATION

HCAL 2511/2020

[2026] HKCFI 1815

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2511 of 2020

  Application for Leave to Apply for Judicial Review

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

Following:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 30 December 2020 for leave to apply for judicial review (the “leave application”) of the decision of the of the Director of Immigration (the “Director”) in his Notice of Decision dated 27 November 2020 (the “2020 Notice”) refusing his request to make a subsequent claim (the “Request”).  He also named the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) as a proposed respondent, but no relief is sought against any decision of the Board.

2.  The Applicant had requested an oral hearing.  A hearing on 2 February 2026 was scheduled and notice of hearing were sent to him by post on 15 January 2026 to his address as stated in his Form 86 and to his address as discovered from the Immigration Department on 16 October 2025.  The Applicant had never informed the court of any change of address thereafter.   Neither of the notices has been returned through the course of mail.   There is nothing to suggest that the Applicant had not received either of the notice of hearing.   An attempt was made on the afternoon of 30 January 2026 to contact him by telephone to remind him of the hearing, but the calls were not answered.  The Court was satisfied that the notice of hearing had been duly served on the Applicant and that the Court had tried its best endeavour to bring the hearing to his notice.   He did not appear at the hearing.  Having considered the nature of the application and issues raised, the Decision, the papers, the applicable legal principles and all the circumstances, the Court considered that the leave application may be justly determined on paper without an oral hearing.

Background

3.  The Applicant is a Nepalese, aged 31.  He arrived Hong Kong on 27 June 2015 and overstayed since 29 June 2015.  He surrendered to the Immigration Department on 10 July 2015 and submitted a written signification for non-refoulement protection on 20 January 2016 (the “previous claim”).  His previous claim was rejected by the Director.  His appeal against the Director’s decision was dismissed by the Board.  His application for leave to apply for judicial review under HCAL 376/2017 was refused by Deputy High Court Judge Woodcock on 23 March 2018.  His appeal against the decision of Deputy High Court Judge Woodcock was dismissed by the Court of Appeal in CACV 76/2018 on 28 September 2018.  His previous claim had run its full course on 18 January 2019 when the Court of Appeal refused him leave to appeal to the Court of Final Appeal. However, he did not leave Hong Kong.  Seventeen months later, he made the Request to the Director to file a subsequent claim.  His Request was refused by the Director’s 2020 Notice.  He now applies for leave to apply for judicial review of that 2020 Notice.

The law

4.  Under the Unified Screening Mechanism (“USM”), a person who has previously made a non-refoulement claim may not make a subsequent claim except pursuant to section 37ZO of the Immigration Ordinance.  The section requires an applicant to show to the satisfaction of an immigration officer: (i) a significant change of circumstances since the previous claim was finally determined or withdrawn; and (ii) that the change, when taken together with the materials previously submitted in support of the previous claim would give the subsequent claim a realistic prospect of success.  In deciding whether the applicant may make a subsequent claim, the immigration officer may take into account any finding of credibility or fact made by the immigration officer or the Board in relation to the previous claims made by the applicant.

The Applicant’s previous claim

5.  His personal background, the factual background leading to the present application, the basis of his previous claim and the arguments she advanced, the finding of the Board and the reasons for its Decision are set out in details in the Board’s Decision.  These will not be repeated here.  The hyperlink to the Board’s Decision is included below [1] for reference.  The gist of his previous claim is that, if returned to Nepal, he will be harmed or killed by the family of his deceased girlfriend because of their love affairs, by the people from the Congress Party associated with her family and by the police for having allegedly raped his girlfriend.

6.  The immigration officer who assessed the Applicant’s previous claim (the “previous case officer”) found the level of risk of harm inflicted upon the Applicant by the family of his deceased girlfriend and by the Congress Party to be low and reflective of a low risk of future harm.  He found state protection and internal relocation alternatives were available to lower or negate the perceived risk of harm from his deceased girlfriend’s family.

7.  On appeal, the Board found there was no logical motive for the police to ill-treat the Applicant or evidence to support his claim of police brutality in attempting to extract a confession of rape from him.  The Board rejected his claim of police brutality.  It also rejected the Applicant’s claim of another assault based on vague allegations.  It found, even if his girlfriend’s father (“the father”) and his handful of unknown men from the Congress Party had the resources, manpower as well as the will, they had no interest in locating him all over Nepal.  It found the Applicant could avoid the risk of harm by internal relocation.      

The immigration officer’s decision on the intended subsequent claim

8.  The Applicant advanced the following changes in circumstance in support of his Request.  His girlfriend’s father had become more powerful as he had won the local election and become the Chairman of the Dhading District.  The father had instigated the Nepalese government and police to investigate a charge of murder against the Applicant in respect of the death of his girlfriend.  The father and his underlings had threatened and beaten the Applicant’s uncle when trying to extract information on the Applicant’s whereabouts. 

9.  The immigration officer conducted a screening interview for the purpose of assessing his intended subsequent claim.  Except for the last of the above assertion, which the Applicant had verified with his uncle, all the assertions were based on hearsay from his friend.  The immigration officer found the Applicant could not explain why his friend knew the father had instigated the investigation of a charge of murder against him.  The immigration officer found there was no cogent evidence to support the claimed changes in circumstance. 

10.  Even accepting the Applicant’s case at its highest and that the information in the medical certificate and the newspaper cutting were true, the immigration officer found the Applicant had not produced any concrete evidence that the father in his position as the leader of a district of Nepal was able and interested to hurt and kill him.  Even accepting that the Applicant’s uncle had been assaulted by the father’s men and hospitalized for one month, the immigration officer found the frequency and intensity of the ill-treatment against the Applicant’s uncle to be low. 

11.  Having taken into account the finding of the case officer and the Board in the previous claim, the immigration officer took the view that the Request is largely a reiteration or continuation of the previous claim and does not amount to any significant change of circumstances warranting the making of a subsequent claim.  Hence, he issued the Notice on behalf of the Director refusing the Applicant’s Request to make a subsequent claim. 

The legal principles applicable to judicial review

12.  The function of the court in judicial review is not to re-assess the non-refoulement claims afresh.  The primary decision-makers in a claim for non-refoulement are the Director and the Board.  They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  In an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality:  see Nupur Mst v Director of Immigration [2].

Grounds for judicial review

13.  The Applicant had not advanced any grounds of application in his Form 86 or supporting affirmation.  He did not attend the hearing and forwent the opportunity of addressing the Court on this issue.  In the absence of any pleaded grounds of application, the Court shall focus on errors of law, procedural unfairness and irrationality in its overall scrutiny of the immigration officer’s Decision.

Overall scrutiny

14.  Having considered the Request, the Director’s Notice and the Board’s Decisions in the previous claim and having rigorously examined the 2020 Notice with anxious scrutiny, the Court is satisfied that the immigration officer observed a very high standard of fairness.  He advised the Applicant on the law and procedure in prosecuting his Request and advised him of the availability of publicly funded legal assistance.  He referred his case to the Duty Lawyer Service (the “DLS”) which subsequently represented him.  The Applicant could have no valid complaint about procedural unfairness in the immigration officer’s processing of his Request.

15.  The Court is also satisfied that the immigration officer had correctly set out the law and key legal principles applicable to the making of a subsequent claim under section 37ZO of the Immigration Ordinance; correctly identified the issues; and properly analysed the evidence.  On any objective view of the evidence and information presented by the Applicant in his Request, it was open to the immigration officer to make that finding as he did.  The officer gave full reasons for his finding.  This is a finding of fact solely for the decision maker, which the Court in an application for judicial review may not interfere.  The Court could not detect any error of law or procedural unfairness in the processing of his Request.  The decision in the 2020 Notice does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational. 

Conclusion

16.  For the above reasons, the proposed judicial review has no realistic prospect of success.  The Applicant’s application for leave to apply for judicial review of the Director’s decision in his 2020 Notice is therefore 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