GURUNG PUSPA AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1086/2020

[2025] HKCFI 5880

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1086 of 2020

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 documents and Applicants being present in open court;

1.  Leave for the applicants to apply for Judicial Review against the Board’s 2^nd Decision be refused; and

2.  Non-compliance with Order 80, rule 2 of the RHC in these proceedings be treated as a mere irregularity without rendering the 2^nd applicant’s application a nullity.

Observations for the Applicants:

The application

1.  The 1^st applicant is the mother (“the mother”) and the 2^nd applicant is her son, aged 16, and was born in Hong Kong (“the son”). They are illegal immigrants, the mother having entered Hong Kong on 5 February 2008 by boat. She cohabited with another man and gave birth to the son.

2.  The mother and the son lodged their claim with the Director of Immigration (“the Director”) on the basis that, if refouled, they will be harmed or killed by her husband, Binod because she had given birth to the son with another man. The Director considered their claim on the torture risk, BOR 3 risk and Persecution risk as more particularly set out below. By Notice of Decision dated 27 November 2014 (“the Director’s 1^st Decision”) the Director rejected their claim.

3.  They appealed to the Board. By Decision dated 15 December 2016, the Board dismissed their appeal (“the Board’s 1^st Decision”).

4.  By letter dated 3 April 2017, the Director invited the mother to submit additional facts in support of their claim on all applicable risks, including the BOR 2 risk for his consideration of their non-refoulement protection. This was, in fact, a re-assessment of the applicants’ claim. The mother had no additional materials for re-assessment of their claim. Having considered the legal issues in respect of BOR 2 risk, the Director, by Notice of Further Decision dated 3 April 2017 (“the Director’s 2^nd Decision”), rejected their claim on all the applicable risks, including BOR 2 risk. They appeal to the Board. By Decision dated 22 May 2020 (The Board’s 2^nd Decision), the Board dismissed their appeal.

5.  The applicants jointly applied for leave to apply for judicial review of the Board’s 2^nd Decision. They appeared before the Court on 17 November 2025.

6.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicants’ claim

7.  The mother is a national of Nepal. Her claim for non-refoulement is on the basis that, if refouled, she and the son will be harmed or killed by her husband because he had threatened to do so if she had relationship with another man.

8.  The son’s claim relies on the mother’s facts.

The Director’s Decisions

9.  The Director considered the applicants’ claims in relation to the following risks:

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

c.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

d.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

10.  By way of the Director’s 1^st Decision, the Director dismissed their claim on Torture risk, BOR 3 risk and Persecution risk. By way of the Director’s 2^nd Decision, the Director rejected their claim on the applicable risks, including the BOR 2 risk.

The Board’s Decisions

11.  Although the applicants only apply for leave for judicial review of the Board’s 2^nd Decision, since the facts of their case are mainly dealt with by the Board’s 1^st Decision, it is necessary to take into consideration of the Board’s 1^st Decision in this application.

The Board’s 1^st Decision

12.  The Board conducted a hearing on 12 August 2015. The applicants were present and the mother had given oral evidence and answered the Board’s questions. Having considered the evidence, the Board made the findings below. See the Board’s 1^st Decision by hyperlink https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL001086_2020_files/1st_Board's_Decision.pdf.

(1)  Binod’s threats were meant to win back the applicant. The threats were made a long time ago without any intention to carry them out. The applicant had given birth to 2 children and Binod had already got married and had a child. It is simply not practicable for Binod to have reunion with the applicant. [17]

(2)  State protection will be available to the applicants if they returns to Nepal. [22]

(3)  There was no evidence that the state was involved. [24]

13.  Based on the reasons above, the Board dismissed the applicants’ appeal against the Director’s 1^st Decision.

The Board’s 2^nd Decision

14.  The Board conducted a hearing on 4 March 2020 for the applicants to appeal against the Director’s 2^nd Decision. The mother had given oral evidence and answered the Board’s question.

15.  Having considered the evidence, the Board made the findings below. See the Board’s 2^nd Decision by hyperlink https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL001086_2020_files/2nd_Board's_Decision.pdf.

(1)  State protection will be available to the applicants if they return to Nepal. [7]

(2)  It did not accept that after a period of 17 years, Binod would be interested in looking everywhere in Nepal for the mother and the son. [9]

(3)  It held that the applicants failed to establish their claim on BOR 2 risk. [11]

16.  By the Board’s 2^nd Decision, the Board dismissed their appeal and confirmed the Director’s 2^nd Decision.

Application for leave to apply for judicial review

17.  The applicants filed Form 86 on 3 June 2020 for leave to apply for judicial review of the Board’s 2^nd Decision.

18.  In the mother’s affirmation in support of their application, she did not raise any specific ground to challenge the Board’s Decisions.

Discussion

19.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicants’ appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526 CA, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

20.  The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny. The applicants appeared before me. The mother confirmed that she had presented the full facts to the Board for consideration.

21.  The mother has raised no valid ground to challenge the Board’s Decisions.

22.  It is apparent that the applicants were not legally represented before the Board. The Court of Appeal in Fabio Arlyn Timogan, Salaudin Rabia & Salaudin Faheem v Evan Ruth, Esq, Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office [2020] HKCA 971, Hon Lam, Barma and Au JJA, 27 November 2020 held that in such circumstances, it is incumbent upon the Board to see if there were any child-specific issues, which were not brought to the Board’s attention because of lack of legal representation for the minors, and to have separate consideration of the child specific issues as the minors are more liable to be subjected to the applicable risks than the parent.

23.  The Court of Appeal in Re: Jasvir Singh & Ors [2021]HKCA 53, 14 January 2021, Hon Lam VP and AU JA, 14 January 2021 further held:

“33. … if the court is satisfied the Board had achieved high standard of fairness in dealing with the minor’s claim consistently with the above propositions and there is no such underlying matter that may support minor specific non refoulement grounds which had not been advanced before the Board, it is open to the court to conclude that the minor’s intended judicial review is without any merit. In such a case, the court can dismiss his leave application notwithstanding that he has not been legally represented before the Board and in the judicial review leave application, treating the non-compliance with Order 80, rule 2 as a mere irregularity as explained in Zoraydah v Torture Claims Appeal Board [2020] HKCA 442, discussed in [57] of Fabio Arlyn Timogan .”

24.  The question for this Court is whether there is any child specific issue, which the Board had failed to consider for the son because of lack of legal representation, bearing in mind that the mother had not raised any such issue before the Board or this Court at the hearing and the son is now 16 years old.

25.  The Court of Appeal in Re Penol, Sally BArsolaso & Iiggs Paul Derrick [2024] HKCA 790, Hon Chu VP and Barma JA, 22 August 2024 held:

“27. Importantly, both before the Board and in the applications before the Judge and in the present application, the 1^st applicant has not identified any other risks of harm that the 2^nd applicant [the child] may separately face in the Philippines.

28. On the papers available to this Court, we also do not see any material that may give rise to a concern of potential non-refoulement grounds relating specifically to the 2^nd applicant but which had not been advanced to the Board or considered by it because of the lack of legal representation on his behalf before the Board.

29. In the premises, we do not find the 2^nd applicant’s intended judicial review reasonably arguable or any basis to disturb the Judge’s refusal of leave to apply for judicial review.”

26.  The mother has not raised any child specific ground before the Board.

27.  It does not appear to me that there is any child specific issue, which the Board had not considered because of lack of legal representation for the son. In the circumstances, I find that there is no reasonable ground for the son to challenge the Board’s Decisions.

28.  The applicants therefore fail to show that there is any realistic prospect of success in their proposed judicial review.

Disposition

29.  I refuse to grant leave to the applicants to apply for judicial review of the Board’s 2^nd Decision. Accordingly, I dismiss their joint application.

30.  I shall treat non-compliance with Order 80, rule 2 of the RHC in these proceedings as a mere irregularity without rendering the 2^nd applicant’s application a nullity.

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