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

HCAL 2419/2019

[2025] HKCFI 371

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2419 of 2019

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 the Applicant being absent in open court;

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

2.  The Leave Application be dismissed.

Introduction

1.  By prescribed Form 86 filed on 21 August 2019, the applicant applied for leave to apply for judicial review (“Leave Application”). The intended judicial review was against the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) dated 24 July 2019 (“Board’s Decision”) dismissing the applicant's appeal against a decision of the Director of Immigration (“Director”) dated 22 May 2019 (“Director’s Decision”) rejecting the applicant's non-refoulement claim.

2.  In Form 86, the applicant named the Board and the Director together as the proposed respondent(s) and interested parties. 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.

3.  As the applicant had requested for a hearing of the Leave Application, this court held a hearing on 17 December 2024. A notice of hearing with a reminder of the consequence of absence dated 29 November 2024 was sent to the applicant’s last known address by ordinary post. The applicant did not turn up at the hearing. A telephone call was made to the applicant’s given telephone number on the day before the hearing and at the hearing, but to no avail. The information before this court shows that the said notice of hearing has not been returned undelivered through the post.

4.  In the circumstances, this court will dispose of the Leave Application according to the materials already placed before the court.

Background

5.  The background as taken from the respective decisions of the Director and the Board referred to above can be briefly stated as follows.

6.  The applicant was a national of Nepal. In September 1996, he came to Hong Kong as his ex-wife’s dependent, as he wanted to escape from the threat and problem caused by the Communist Party in Nepal. After the separation with his ex-wife in 2000, the applicant was allowed to remain in Hong Kong on a dependent visa until 10 September 2000. However, the applicant did not depart and instead overstayed since 11 September 2000. On 16 October 2017, he was arrested by police. On 12 July 2018, he was convicted of the offence of breach of condition of stay and was sentenced to a total of 12 months’ imprisonment. On 23 April 2019, the applicant lodged a non-refoulement claim, and the applicant’s case was considered under all applicable grounds - the risk of torture[1], BOR 2 risk[2], BOR 3 risk[3] and persecution risk[4] under the USM.[5] The claim was based on a fear that if refouled, he would be harmed or killed by the Communist Party (Maoist) , which had blamed the applicant for the death of two of its members in a scuffle.

7.  In the Director’s Decision, the Director decided against the applicant’s claim on all applicable grounds. The Director assessed the claimed risk of ill-treatment to have been low and there was no evidence suggesting that the applicant would be harmed by the government or ruling party. Furthermore, even assuming the police were looking for the applicant in relation to a murder case, the police were merely executing their duties to investigate the case. The Director also found that the applicant had never been detained by the police or inflicted any harm to the applicant. 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 applicant’s appeal to the Board against the Director’s Decision.

8.  On 6 June 2019, the applicant requested the Board to make a decision without a hearing of his appeal. By another letter received by the Board on 17 June 2019, the applicant confirmed the same request and the Board acceded to the applicant’s request. In the Board’s Decision, the Board found that the non-refoulement claim should have been made shortly after the expiry of his dependent visa in September 2000. However, the applicant only made the claim almost 19 years after he was convicted for overstaying. The Board concluded that the applicant was not a genuine non-refoulement protection seeker and the claim was untenable. In any event, the Board found that the applicant had many options for relocation and that his problem with the Communist Party was entirely a personal and private matter by nature. The Board found that the applicant’s appeal failed on all applicable grounds.

Legal principles applicable to judicial review

9.  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

10.  The applicant’s Form 86 did not contain any grounds for seeking relief. In his supporting affirmation of the same date, he set out three grounds in support of the Leave Application, which can be summarized into two, namely that (i) the Board’s Decision was based on biased and irrelevant information that was unfair and unreasonable; and that (ii) the Board failed to determine his threat he would face in his home country. These grounds are simply bare assertions without evidence or identification of errors in support of the intended challenge.

11.  The Board’s Decision was arrived at after it had the opportunity of examining all the documents and materials that were placed before it. The Board’s findings stated above are findings of fact, which the court in a judicial review will not interfere with.

12.  Having rigorously examined the Board’s Decision with anxious scrutiny, this court is satisfied that the Board correctly applied the law and the key legal principles relating to all the grounds mentioned above; correctly identified the issues, and observed a very high standard of fairness despite the Board’s acceding to the applicant’s repeated requests in not holding an oral hearing. I find that it was perfectly open to the Board to come to its conclusion that the applicant failed to discharge his burden of proving the asserted fears and risks.

13.  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.

Orders

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

15.  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