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HCAL 299/2020
[2025] HKCFI 1605
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 299 of 2020
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BETWEEN
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Tamang Ganga Bahadur |
Applicant |
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and |
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Torture Claims Appeal Board /
Non-refoulement Claims Petition Office |
Putative
Respondent |
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and |
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Director of Immigration |
Putative |
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Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following;
Order by Deputy High Court Judge To dated 2 April 2025:
1. The application for re-open the application for leave to apply for Judicial Review be granted;
2. The order made by Deputy High Court Judge To dated 10 October 2023 be set aside ; and
3. 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 3 March 2020 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 23 January 2020 and the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 26 November 2018 (the “Notice”), refusing his application for non-refoulement protection. By the Decision, the Board dismissed the Applicant’s appeal against the Director’s decision in the Notice.
2. By his letter dated 27 January 2025, the Applicant applied to withdraw his leave application (the “withdrawal application”) on the ground that it is now safe for him to return to his home country and that he wished to return. The Court refused his withdrawal application as he failed to confirm that he made the withdrawal application out of his own free will and that he understood the consequences of the withdrawal. The Court then assessed his leave application on paper and refused his leave application. An order to that effect and the Form CALL-1 were issued on 12 March 2025.
3. On 13 March 2025, the Applicant took out a summons seeking to re-open his leave application. He claimed he was confused when he made the withdrawal application. A hearing was scheduled to consider his re-opening application. At the hearing, the Court allowed his application to re-open, set aside the Order and Form CALL-1 dated 12 March 2025 and proceeded to hear his leave application.
4. The Applicant is a Nepali national, now aged 40. He entered Hong Kong as a visitor and overstayed since 4 November2004. He surrendered to the Immigration Department on 26 January 2015 and made a claim for non-refoulement protection. His claim was assessed on all four applicable grounds under the Unified Screening Mechanism (the “USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4]. His claim was rejected by the Director’s Notice. His appeal against the Notice was dismissed by the Board’s Decision. He now applies for leave to apply for judicial review of that Decision and the Notice.
5. The Decision of the Board is reviewable by judicial process but not the decision of the Director in the Notice because there are established statutory procedures of appeal to the Board and the Applicant has invoked those procedures. The Director’s decisions in the Notice was superseded by the Board’s Decision and is no longer susceptible to judicial review: Re Moshsin Ali[5]. In the circumstances, the Court considered his leave application only as regards the Decision.
The Applicant’s case
6. The following account of the Applicant’s case is based on the information in his non-refoulement claim form prepared by him with legal assistance and the record of his screening interview in the presence of his lawyer. In gist, he claims that if returned to Nepal, she will be harmed or killed by the Maoist Party for (1) abandoning his position in the Party without notice; stealing 500,000 Nepalese Rupees (“NR”) from the Party; and (3) eloping with the daughter of the senior area commander of the Party (“Surja”).
7. The Applicant was born and raised in Siranchowk. He was forced to join the Maoist Party as an ordinary member because his parents were unable to make a donation. At the time, he was 13 years old and had graduated from high school. He was promoted to be the chairman of the Party in his area. A year later, he became an area commander. He met Surja in a social function in the home of his senior area commander. He later worked with her in the Party’s activities and they fell in love. As the Applicant was from a lower caste, he and Surja knew Surja’s father would oppose their relationship. They started to date secretly.
8. In 2000, the Applicant and Surja eloped with NR 500,000 stolen by the Applicant from the Party’s funds. They hid for a month in the jungle and in abandoned houses. Then, they moved to Laxmimarga where they married and stayed for eight years. The members found out where they lived and visited their home regularly. They found Surja, but throughout those eight years’ they never managed to find the Applicant because he had been alerted of their arrival by his neighbours and left before the members arrived. Surja refused to return home and the members left without harming her.
9. Subsequently, the Applicant and Surja moved to Darjeeling in India where they stayed for two years. The Applicant was told by his parents that the members had visited them and threatened to kill them if they did not hand him over to the Party. Out of fear for his parents’ safety, the Applicant returned to his parents’ home with Surja secretly.
10. After a week, some members came. The Applicant fled to the jungle and stayed for 15 days. Then he went to Kathmandu. There, he was informed by his parents that Surja had been taken away by the members to her father’s home against her wish. Since then, he had not heard from her again. He was informed by his fellow villagers that the members were still searching for him. Thus, he fled to Macau. From there, he entered Hong Kong on 27 October 2014.
The finding of the Board
11. The Applicant testified at the hearing of the appeal. The Board accepted most of his evidence about the factual background of his case but found significant inconsistencies and implausibilities in the centrepiece of his case.
12. The Applicant said his hiding place in Laxmimarga was discovered by the members after they had settled there for eight or nine months and the members had been visiting them regularly. The Board found it implausible that the Applicant and Surja would continue to stay there for eight years after their location had been discovered. It was not even satisfied that this evidence is probably true.
13. Further, on that evidence, the members would have made about 85 visits during the Applicant’s eight years’ stayed in Laxmimarga. The Board found it implausible that he could have successfully avoided the members on all those 85 visits. The Applicant explained that the members had to seek directions from local residents as to where they were living and the local residents alerted him about their arrival. The Board rejected that explanation as his location was known to the Party and some of the visiting members might have visited him before and knew where he and Surja lived without having to seek directions from the local residents. They could also have tried to capture him in some other manner such as making an evening or a night visit. The Board found this part of his evidence unbelievable.
14. The Applicant said he returned to his parents’ home after having stayed peacefully in Darjeeling for two years out of concern for his parents’ safety. All the evidence in his NCF suggest he was referring to his parents’ home in Siranchowk where he was raised, where his parents had a house and farmland, and where the villagers knew him and alerted him of the arrival of the members. However, the Applicant said late in the hearing that his parents moved to Itahari soon after he had eloped to Laxmimarga in 2001, nine years before Surja was taken back by her father. But, elsewhere in his NCF, he stated that soon after he arrived in Hong Kong (that was 2014), his parents moved to Itahari to avoid the threats of the members. The discrepancies between his testimony and his evidence in his NCF are so serious that the Board refused to attach any credence to this evidence.
15. In view of the above and other significant inconsistencies between his testimony and his evidence in the NCF which go to the heart of his story, the Board had doubts about his credibility and the truthfulness of his evidence. He was unwilling to acknowledge the discrepancies or provide a reasonable explanation. Hence, the Board found him untrustworthy and that he failed to prove the centerpiece of his claim. Applying the law applicable to non-refoulement protection under the USM to the facts found, the Board was not satisfied he had proved the factual basis to support his claim to protection under any of the applicable grounds under the USM. Hence, it dismissed his appeal.
Legal principles applicable to judicial review
16. 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[6].
Grounds for judicial review
17. The Applicant had not advanced any grounds of application in his Form 86 or supporting affirmation. However, in his supporting affirmation, he raised a number of grounds based on procedural unfairness due to lack of language assistance and legal representation. This Court is familiar with these grounds as it has seen them in other leave applications. These are all general, unspecific and un-particularised. Usually, they have no bearing or relevance to the application in issue. For example, he challenged the Director’s reliance on country of origin information (“COI”), but the Decision was based on the Board’s finding of the Applicant’s credibility which had nothing to do with COI. Indeed, the Board had not relied on any COI in making its Decision. It would be a futile exercise to discuss these grounds due to lack of particulars, especially as the Applicant confirmed that he had no complaints about errors of law, procedural unfairness or irrationality when the legal principles in the precedent section was explained to him.
Overall scrutiny
18. Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness. The Board conducted a rehearing. It accepted most of the Applicant’s account of the event on which his claim was based. It assessed his evidence carefully, tested it against common sense and inherent probability. It found him untrustworthy and the core of his case not credible. It gave detailed reasons for its finding. It was on that basis that the Board found the Applicant had failed to establish the factual case to support his claim for non-refoulement protection under any of the applicable grounds under the USM. These are mixed findings of fact and of the law. Insofar as they are finding of the law, they are absolutely correct. Insofar as they are findings of fact, they are exclusively within the realm of the Board, which the Court on a judicial review will not interfere save when such finding was made as result of error of law, procedural unfairness or that the Decision is irrational. The Court could detect no error of law or procedural unfairness in the Decision. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. Basically, the Applicant failed to discharge his burden of proving his fears and risks. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success.
Conclusion
19. For the above reasons, the Applicant’s leave application is refused.
Dated the 22nd day of April 2025
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( Seline Sze )
for Registrar, High Court
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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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant
on 22/04/2025
Tamang Ganga Bahadur
Applicant’s ref. no:
Nil |
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 22/04/2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 14805/18/12/162/N583
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 4088/18 (Formerly RBCZ 10870/15)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] Risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
[2] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”)
[3] Risk of persecution by reference to the non-refoulement principle under Article 23 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol
[4] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383
[5] [2018] HKCA 549
[6] [2018] HKCA 524 at [14(1)]
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