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

HCAL 39/2021

[2025] HKCFI 319

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 39 of 2021

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 oral submissions by the Applicant in open court;

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

2.  The Leave Application be dismissed.

Observations for the Applicant:

Introduction

1.  In these proceedings, there are two decisions of the Director of Immigration (“Director”) respectively dated 23 January 2015 and 19 October 2017 ( respectively “Director’s 1^st and 2^nd Decisions”), and two decisions of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) respectively dated 6 February 2017 and 14 December 2020 (respectively “Board’s 1^st and 2^nd Decisions”). The Board’s 1^st and 2^nd Decisions respectively dismissed the Director’s 1^st and 2^nd Decisions rejecting the applicant’s non-refoulement claim.

2.  By prescribed Form 86 filed on 11 January 2021, the applicant applied for leave to apply for judicial review (“Leave Application”) of the Board’s 2^nd Decision.

3.  As no request for a hearing was made, this court will determine the Leave Application without a hearing: O.53, r.3 (3) of the Rules of the High Court.

4.  In the Form 86, the applicant named the Director and the Board as the proposed respondents, and the Board as the proposed interested party. As the Board should have been the proper proposed respondent and the Director the proper proposed interested party, Form 86 will be amended accordingly on the court’s own motion.

Background

5.  The background as taken from the Director’s and the Board’s 1^st and 2^nd Decisions can be briefly stated as follows.

6.  The applicant is a national of Nepal. She entered Hong Kong illegally on 7 August 2009 and was arrested by the police on the same day. The applicant lodged a non-refoulement claim on 10 August 2009 covering all applicable grounds other than BOR 2 risk[1] – risk of torture[2],, BOR 3 risk[3], and persecution risk[4] under the USM.[5] The claim was based on her fear that she would be harmed or killed by Maoists if she were refouled back to her country.

7.  In the Director’s 1^st Decision, the Director decided against the applicant’s claim on all applicable grounds other than BOR 2. The Director assessed the claimed risk of ill-treatment from Maoists to have been low. After having considered the country of origin information reports (“COI”), the Director was satisfied that state protection was available and that internal relocation alternatives were available and reasonable. Hence, the appeal to the Board.

8.  On 18 April 2016, the applicant attended a hearing before the Board. In the Board’s 1^st Decision, the Board found that the applicant had never been attacked nor subjected to any physical violence. After considering the COI, the Board concluded that the applicant had not substantiated her case and that the applicant failed to establish on all the aforesaid grounds.

9.  On 24 March 2017, the Director issued a letter to the applicant inviting the applicant to submit additional facts, if any, relevant to her non-refoulement claim on all applicable grounds, including BOR 2 risk. The Director received the applicant’s letter informing the Director that her problem remains unchanged and that she had married a Hong Kong resident in Hong Kong. No information or additional facts about BOR 2 were submitted. In the Director’s 2^nd Decision, by a Notice of Further Decision dated 19 October 2017, the Director refused her non-refoulement claim on the BOR 2 ground. Hence, an appeal to the Board against the Director’s 1^st Decision.

10.  On 24 December 2019, the applicant attended a hearing before the same constituted Board. In the Board’s 2^nd Decision, the Board found that the applicant had not substantiated her case and that the applicant failed to establish her case under BOR 2 and confirmed the Director’s 2^nd Decision.

Legal principles applicable to judicial review

11.  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

12.  The applicant’s Form 86 did not contain any grounds for seeking relief. In her supporting affirmation of the same date, she exhibited a copy of the Board’s 2^nd Decision and deposed that the decision was unfair and unreasonable. No particulars were stated.

13.  Having rigorously examined the Board’s 1^st and 2^nd Decisions with anxious scrutiny, this court is satisfied that the Board correctly applied the law and the key legal principles relating to the four grounds mentioned above; correctly identified the issues, and observed a very high standard of fairness. I am satisfied that there were no errors of law or procedural unfairness in the Board’s Decision. The Board had taken all the relevant circumstances of the applicant’s claim into account in its assessment. I find that it was perfectly open to the Board to come to its conclusion that the applicant had failed to discharge the burden of proving the asserted fears and risks.

14.  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. The Leave Application is accordingly dismissed.

The removal of the applicant

15.  By a letter dated 2 December 2024, the Removal Assessment and Litigation (Removal and Deportation) Section of the Immigration Department informed the court that the applicant had been removed from Hong Kong on 8 October 2024. We will send a copy of this judgment and the sealed order to the Director, who is requested to use best endeavours to forward them to the applicant.

Orders

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

17.  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