GIRI RADHE SHYAM v. TORTURE CLAIMS APPEAL BOARD

HCAL 1920/2025

[2026] HKCFI 1954

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1920 OF 2025

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

1.   On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board”.

2.   The applicant’s application for extension of time to file the application for leave to apply for judicial review be refused.

3.   The applicant’s application for leave to apply for judicial review be dismissed.

Observations for the applicant:

The Leave Application

1.  By way of Form 86 dated and filed on 27 August 2025, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board (“the Board”) dated 16 October 2023.  The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2025/HCAL001920_2025_files/the_Board's_Decision.pdf

2.  The Board found that the applicant was unable to make out his claims for non-refoulement protection on any of the applicable grounds under the Unified Screening Mechanism (“the USM”).  Thus, the Board rejected the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 18 August 2022 (“the Director’s Decision”), which rejected the applicant’s claim for non-refoulement protection, and confirmed the same.

Amendment

3.  In Form 86, the applicant named the Board as the putative respondent but spelt the Board’s name wrong.

4.  Thus, on this court’s own motion, the name of the putative respondent is amended to “Torture Claims Appeal Board”.

Late application

5.  By virtue of Order 53, rule 4(1) of the Rules of the High Court, Cap 4A, the applicant had to make the Leave Application within 3 months when the grounds for the Leave Application first arose, ie when the Board’s Decision was made.

6.  However, the applicant filed Form 86 on 27 August 2025, which was more than 22 months after the Board’s Decision (made on 16 October 2023).  The applicant was hence late for more than 19 months in making the Leave Application, and this court has to consider whether there is any good reason to extend the time for the applicant to make the Leave Application.

7.  As held in AW v Director of Immigration [2016] 2 HKC 393, the criteria for granting an extension of time are:

(i)   the length of the delay;

(ii)   the reason for the delay;

(iii)   the merits of the intended application; and

(iv)   any prejudice to the putative respondent and to public administration.

8.  In a document dated 27 August 2025, which was annexed to the applicant’s supporting affirmation dated 19 August 2025, under the heading “Reason for Late filing or extention of time for judicial review”, the applicant admitted that the Leave Application was filed 19 months late and applied for an extension of time to file the Leave Application.

9.  The reasons for the delay as stated in the said document can be summarised as follows:-

(1)   The applicant did not receive the Board’s Decision at his residential address because of his improper accommodation which was described as “not confidential, privacy and secure”.

(2)   He had mental and health conditions, during which he was unable to get the Board’s Decision.

(3)   He was arrested by the police in January 2024 for theft and was convicted.  He was serving sentence at Tai Lam Correctional Institution, during which he was informed by the Immigration Department on 7 May 2024 that the Board had already made a decision regarding his case.

(4)   When he received the Board’s Decision, he did not have money to apply for leave to apply for judicial review.  He only managed to file the Leave Application when his friend arranged the money for him to pay the filing fee.

10.  At the oral hearing before this court on 5 March 2026, the applicant explained the delay by saying that he did not receive the Board’s Decision as he was detained due to an incident and he was late because of his lack of knowledge.  He said that he had already explained the reasons in the said document.

11.  A delay of more than 19 months is very substantial, and the explanations provided by the applicant are not satisfactory.  Even assuming that he did not receive the Board’s Decision at his residential address, the applicant could have taken the initiative to make enquiries with the Director or the Board to find out the result of his appeal/petition instead of waiting to be informed.  When he was allegedly informed about the Board’s Decision on 7 May 2024 while in custody, he could have sought his friend’s assistance shortly after that instead of waiting for more than 15 months until 27 August 2025 to file the Leave Application.

12.  More importantly, there is no merits in the intended judicial review as discussed below.

13.  Thus, this court is not prepared to grant any extension of time to the applicant to file the Leave Application.  The applicant’s application for extension of time to file the Leave Application is refused.  The Leave Application can be dismissed on the ground of being made out of time alone.

14.  However, for the sake of completeness, this court will still consider with the merits of his case.

The applicant’s case

15.  It is not necessary for this court to repeat the details of the applicant’s case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above.

16.  In sum, the applicant claimed for non-refoulement protection because if refouled to Nepal, he would be at risk of harm, ill-treated or killed by the family members of his ex-wife (“In-Laws) as he had ruined his ex-wife’s life by marrying her against her family’s wishes.

Oral hearing

17.  The applicant requested for an oral hearing of the Leave Application and his case was heard on 5 March 2026. 

18.  When this court asked him to elaborate on the grounds of his intended judicial review, which were laid out in pages 2 to 18 of the document annexed to his supporting affirmation, he merely said that everything was written there and he would rely on the contents of the document as his grounds for judicial review, without any elaboration.

Grounds for judicial review

19.  The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).

20.  The applicant did not state any grounds for his intended judicial review in his Form 86.  In pages 2 to 18 of the document which was annexed to his supporting affirmation, the applicant first complained that the Board’s Decision was Wednesbury unreasonable or irrational, and that the Board failed to give any or had given insufficient reason for dismissing his claim for non-refoulement protection.

21.  The applicant then made his submissions under two headings, namely “Rider (A)” and “Rider (B)”, the contents of which are summarised as follows:-

(1)   In Rider (A), the applicant questioned what asylum was and mentioned that it was complicated and the rules changed a lot.  He did not know how to win an asylum case or prove himself to be part of a “particular social group”.  He also questioned whether he, as a victim of domestic violence, would be qualified as an asylum.

(2)   In Rider (B), the applicant listed out a number of complaints against both the adjudicator hearing his appeal/petition as well as the Director.  However, some are general grounds which were used by many other applicants in similar applications as their grounds for applying leave to judicially review the Board’s decisions without any regard to their own situations.  Likewise, the applicant did not explain or give any particulars as to how those general grounds were applicable to his own case.  The applicant also advanced several grounds solely against the Director instead of the Board.

22.  This court will deal with the aforesaid grounds as discussed below.

Discussion

23.  Most of the grounds raised by the applicant are very general, vague and without any specificity.  Some of the matters mentioned were actually irrelevant.  The applicant failed to elaborate on any of the grounds at the oral hearing before this court.  Without the applicant’s clarification, this court can only rely on what the applicant submitted in writing to understand his case.

24.  This court will first deal with the applicant’s first two allegations, namely that the Board’s Decision was Wednesbury unreasonable or irrational, and that the Board failed to give any or had given insufficient reason for dismissing his claim for non-refoulement protection.

25.  The applicant did not state how or why the Board’s Decision was unreasonable and irrational.  With regards to his accusation that the Board had failed to give any, or sufficient reason for dismissing his claim, this court notes that the Board had in fact assessed his claim with due care, and had given full and detailed reasoning as to why it concluded that the applicant was unable to make out his claims.  Thus, such accusations are groundless.

26.  In Rider (A) of his submissions, the applicant questioned what asylum was and mentioned that it was complicated and the rules changed a lot.  He did not know how to win an asylum case or prove himself to be part of a “particular social group”.  He also questioned whether he, as a victim of domestic violence, would be qualified as an asylum.

27.  It is clear from the Board’s Decision that the applicant’s risks on all the applicable grounds, including Persecution Risk[1], under the USM had been fully considered.  The Board had made findings and determined that the applicant was not entitled to non-refoulement protection in Hong Kong.  If the applicant intends to challenge the Board’s finding of facts, it is not permissible in an application for judicial review.

28.  The applicant made a number of complaints under Rider (B), which will be discussed as follows.

29.  As mentioned, a number of the applicant’s complaints were directed solely at the Director.  As the Director’s Decision was superseded by the Board’s Decision and is no longer susceptible to judicial review (see Re Moshsin Ali [2018] HKCA 549), the Director’s Decision cannot be the subject matter of the Leave Application.  This court will therefore consider only those grounds directed at the Board in respect of the Board’s Decision.

30.  The applicant asserted that the Board did not make sufficient enquiry before finalizing its decision and failed to inquire from Nepalese authorities. However, it is not a must for the Board to make inquiries with the concerned government’s authorities in dealing with appeals and/or petitions regarding non-refoulement claims.  The applicant also failed to specify why the Board needed to do so.  The burden is in fact on the applicant to prove his case.

31.  The applicant alleged that the Board refused his appeal without solid reasons.  However, as aforesaid, the Board did give detailed reasoning for its decision in the Boards’ Decision.

32.  The applicant repeated his dangers from his In-Laws and the alleged connections of his In-Laws with the government and local gangsters in a number of paragraphs under Rider (B).  However, his dangers from his In-Laws had been duly assessed by the Board, which was delegated with the power to find facts relating to his claims.  This court will not re-assess his non-refoulement claim afresh.

33.  The applicant also challenged the Board’s finding as to the availability of state protection which, again, was within the exclusive ambit of the Board.  This court finds no fault in the Board’s finding on state protection or its reliance on country of origin information (“COI”) to come to its conclusion.

34.  The applicant also cited the whole Section 37ZO of the Immigration Ordinance, which is completely irrelevant to the applicant’s case, as that Section only concerns with limitations on subsequent claim.

35.  In respect of the applicant’s allegation that there was a lack of legal and interpretation assistance, the applicant was actually provided with legal assistance during the first-tier screening of his non-refoulement claim.  The Court of Appeal has repeatedly emphasized that, as a matter of law, a non-refoulement claimant is not entitled to free legal representation at all stages of the process (see Re Zunariyah [2018] HKCA 14; Re Zahid Abbas [2018] HKCA 15; Re Tariq Farhan [2018] HKCA 17; and Re Lopchan Subash [2018] HKCA 37).  Thus, there is no substance in this allegation.

36.  Likewise, it is trite that the high standards of fairness required by law would not entail interpretation service being made available at any time the applicant desires (see Re Gurnishan Singh [2018] HKCA 704 and Re Gurung Sagar [2019] HKCA 658).

37.  In fact, all the documents filed by the applicant in relation to the Leave Application were written in English.  This indicates clearly that the applicant is either familiar with the English language or he has access to such language assistance if needed.  The applicant cannot claim that he has been prejudiced at all.

38.  The applicant also criticized the condition of Nepal as unsafe for him to return and challenged the Board’s finding on the viability of internal relocation.  Again, his dangers upon refoulement to Nepal had been assessed in full by the Board.  He cannot challenge the Board’s finding of facts unless he can identify errors of law, procedural unfairness or irrationality in the Board’s findings.  However, the applicant fails to do so.

39.  Further, the applicant challenged the Board’s assessment of hearsay evidence and mentioned the difficulties that a non-refoulement claimant might face in the collection of documentary evidence.  He mentioned that although the burden of proof rested on the applicant, the Board should share the duty to ascertain and evaluate all the relevant facts.

40.  As can be seen from paragraphs 13 to 28 of the Board’s Decision, the Board was fully aware of the principles in the assessment of non-refoulement claims, including the assessment of hearsay evidence, the burden and standard of proof and that the high standards of fairness required a “joint endeavour” in achieving a fair result such that, where an appellant had failed to provide relevant COI materials, it fell upon the Board to look for the same.  Thus, the applicant’s accusations have no substance at all.

41.  From what the applicant has written in page 12 and 13 of his written submission, it seems that the applicant was saying that he would fight for joint custody of his son, whom he described as his life.  He mentioned that the concerned proceedings were still ongoing.

42.  However, this court notes that the Board had already considered the applicant’s intention to get back his son from his ex-wife and her family, who were all living in Nepal, and the risk of the applicant from his In-Laws as a result (see paragraph 39(2) of the Board’s Decision).  The Board was entitled to find facts in relation to the applicant’s claims and to make its own decision.  This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.

43.  Finally, the applicant made general accusations such as the Board’s Decision did not meet the necessary high standards of fairness and/or was unlawful, the Board’s assessment of his credibility was procedurally unfair and/or irrational, there was error of law and procedural unfairness, etc.  However, all these accusations were advanced without any particulars or any regard to his own situations.

44.  The Court of Appeal has repeatedly held that general assertions without particulars cannot be effective grounds to support a judicial review (see Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578; and Re Kharsu Numan [2019] HKCA 626).  Further, as held by the Court of Appeal in Re Salim Ahmed alias MD Salim [2020] HKCA 244, “general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case”.  Thus, such general allegations cannot help the applicant at all.

45.  It is therefore this court’s finding that the applicant has failed to establish any valid ground for challenging the Board’s Decision.

46.  The role 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.  The court will scrutinize the Board’s decision and intervene by way of judicial review only for errors of law, procedural unfairness, or irrationality (see Nupur Mst v Director of Immigration [2018] HKCA 524).

47.  Thus, despite the fact that the applicant did not advance any valid ground for the intended judicial review, this court will still scrutinize the Board’s Decision for any errors of law, procedural unfairness, or irrationality as aforesaid.

48.  In assessing the appeal by the applicant, the Board held an oral hearing on 31 August 2023.  The applicant was present and was given the chance to present his case to the Board in person. 

49.  As can be seen from the Board’s Decision, the Board accepted the basic facts advanced by the applicant and that he was subjectively afraid of his In-Laws and believed they might harm and/or kill him.

50.  However, there was no, or no reliable evidence to show (and the Board did not accept) that (1) the applicant’s In-Laws would target the applicant now; (2) the applicant would face any problems in Nepal; (3) the applicant had been subjected to physical suffering of the requisite severity; and (4) the state of Nepal was unwilling to help the applicant for a RC[2] reason.

51.  The Board found that it was the applicant’s own case that he was not targeted in the past for a RC reason but only in relation to a private family issue.  His In-Laws were non-state actors in relation to the applicant’s alleged situations.  The applicant had never been physically harmed by his In-Laws.  The issue of state acquiescence did not arise in the circumstances of the applicant’s case.

52.  As to state protection, the Board found from reliable COI that although there were doubts as to the effectiveness of the police in Nepal, the Nepal government had taken practical steps to maintain public order and safety within its territory and to improve their effectiveness and monitor the conduct of the police.  In fact, the applicant had taken no steps to file a police report against his In-laws.  The Board found that COI did not indicate that the police would not have followed up any complaints in relation to the alleged threats, if made.  The Board considered that had attempts been made to seek the assistance of the police, that might have put an end to the problems the applicant claimed to face in Nepal.  The Board found the evidence suggested that state protection would be available and accessible to the applicant if he were to return to Nepal.

53.  Given its findings as summarised above, the Board noted that it was not strictly necessary to deal with the question of internal relocation.  Nevertheless, the Board did assess the viability of internal relocation for the applicant as a matter of caution.

54.  The Board found the applicant’s assertion that he could not relocate safely anywhere within Nepal was largely based on hearsay and speculation.  The applicant actually accepted at the Board’s hearing that his problems were localised in Pokhara.

55.  The Board found that even if the applicant were afraid to return to his home area or Pokhara, there was no reason why he could not relocate to other parts of Nepal and stay there without undue hardship.  The applicant was 39 years old at the time of the Board’s hearing and he was able-bodied.  The Board was of the view that Lalitpur or Biratnagar might be suitable places for the applicant to relocate, based on available COI and because the applicant had not experienced any impediment in either place.

56.  Thus, the Board found that the applicant could not make out a case for protection on any of the applicable grounds under the USM.

57.  The finding of facts, including the assessment of evidence, COI and risk of harm, was solely within the ambit of the Board.  The Board was entitled to make its own decision.  This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.

58.  Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM, the burden of proof and the standard of proof.  The Board also correctly identified the issues and observed a very high standard of fairness.  This court could detect no errors of law, procedural unfairness or irrationality in the Board’s Decision. The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision. 

59.  As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, for the court to grant leave to apply for judicial review, the claim has to be a reasonably arguable claim which enjoys realistic prospects of success.  It is the view of this court that the applicant has failed to establish such a claim and hence leave must be refused.

Conclusion

60.  For reasons aforesaid, the Leave Application is dismissed for being made out of time and also for devoid of merits.

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