BASU DEV RIJAL v. NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 832/2020

[2025] HKCFI 3075

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 832 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 the Applicant being absent at the hearing in open court

1.  Form 86 be amended on the court’s own motion as follows:-

a.  the Non-Refoulement Claims Petition Office be named as the Putative Respondent; and

b.  the Director of Immigration be named as the Putative Interested Party.

2.  The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

Introduction

1.  By Form 86 filed on 7 May 2020 (the “Form 86”), the Applicant applied for leave to apply for judicial review (the “Leave Application”) against the decision of the Non‑refoulement Claims Petition Office (the “Board”) dated 7 April 2020 (the “Board’s Decision”) which affirmed a decision of the Director of Immigration (the “Director”) dated 24 April 2018 (the “DOI Decision”) to reject the Applicant’s non-refoulement claims on all applicable grounds except torture risk.

2.  In the Form 86, the Applicant did not name a proposed respondent and erroneously named himself as an interested party. As it is trite that the Board should be the proposed respondent whereas the Director should be the proposed interested party, I make an order to amend the Form 86 accordingly on the court’s own motion.

3.  The Applicant had requested an oral hearing for the application. The oral hearing of the Leave Application (“Hearing”) took place before me on 15 July 2025 but the Applicant was absent. I will nevertheless consider the Leave Application on paper as set out below.

Background

4.  The Applicant’s background, the basis and history of his claim and the arguments he advanced had been set out in details in the Board’s Decision, and it is not necessary for me to repeat the same here. The hyperlink to the Board’s Decision is included below[1] for reference. In short, the Applicant claims that his family were supporters or members of the Nepali Congress Party and the Applicant and his family members began to receive threats from members of the Maoist Party after his father ran for the position of Chairman of the Village Development Committee of his home village in Selmar Rupendehi District, Nepal in 2000.

Discussion

5.  It is trite law that the judicial review is not a further avenue of appeal. Though in non‑refoulement cases, the court will adopt a high standard of fairness to review the decision of the Board with anxious scrutiny due to the seriousness of the issue at hand, the court should not usurp the role of the Board. Determination of factual matters such as assessment of evidence, country of origin information (“COI”) materials, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The Court will not intervene by way of judicial review unless there are errors of law, procedural unfairness or irrationality in the decision of the Board. (See Nupur Mst v Director of Immigration [2018] HKCA 524, at §14). Leave application of this sort is intended to be a filtering process and elaborate reasons are not necessary (see Re Zunariyah [2018] HKCA 14, at §23).

6.  In the Form 86, the Applicant did not provide any grounds in support of the Leave Application.

7.  In the supporting affirmation, the Applicant said he still have political “problems” in Nepal with his political enemies but did not elaborate or explain what these problems were.

8.  I have considered the Board’s Decision in detail. I do not find any error of law, procedural unfairness or irrationality the Applicant has not been able to demonstrate any of the same. There is nothing to indicate that the Board had failed to take into account any relevant matters or that it had taken into account irrelevant matters.

9.  The Board’s Decision was comprehensive with adequate reasons provided. Amongst others, the Board was plainly correct in finding that there is no credible evidence of any real risk of any form of serious harm after considering all available evidence, in particular, given that the Applicant and his family members (including the Applicant’s father) were never physically harmed (§§25-34, 47 of the Board’s Decision).

10.  Even on the enhanced standard, I am satisfied that the Board’s Decision is not Wednesbury unreasonable.

11.  In short, I am not satisfied that the Applicant’s intended challenge of the Board’s Decision is reasonably arguable with any realistic prospects of success. Accordingly, I refuse to grant leave for judicial review.

Conclusion

12.  In the premises, I make an order that the Form 86 be amended as described above and 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