Indra Bahadur Sen v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 3767/2019

[2025] HKCFI 1408

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3767 of 2019

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 in open court;

Order by Deputy High Court Judge (Non-refoulement Claims) Philips Wong:

1.  Form 86 be amended as follows:- 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 18 December 2019 (the “Form”), the Applicant applied for leave to apply for judicial review (the “Leave Application”) against the decision of the Torture Claims Appeal Board / Non‑refoulement Claims Petition Office (the “Board”) dated 5 December 2019 (the “Board’s Decision”).

2.In the Form, the Applicant has named the Board as both the proposed respondent and the proposed interested party.  As it is trite that the Board should be the proposed respondent whereas the Director of Immigration (the “Director”) should be the proposed interested party in an application of this sort, I make an order to amend the same on the court’s own motion.

3.The Applicant had requested an oral hearing for the application.  The hearing took place on 13 March 2025 and the Applicant did not attend the hearing.  Notice of Hearing was issued to the Applicant in advance.  On 11 March 2025, the Applicant was reminded to attend the hearing by phone.  The Applicant however indicated in the call that he would need to report to the Immigration Department on 13 March 2025.  The Applicant was then asked whether he could report to the Immigration Department in the morning and attend the hearing in the afternoon.  The Applicant simply replied that he could not attend the hearing.  The Applicant has not submitted any documents in support of his explanation that he could not attend the hearing in the afternoon of 13 March 2025.  The Applicant has also not applied for adjournment of the hearing.  In fact, the Applicant must have received the Notice of Hearing some time ago but chose not to make any necessary arrangement or inform the Court of his unavailability until he was reminded of the hearing on 11 March 2025.  In the premises, I consider it appropriate to determine the application based on the documents before the Court.

Background

4.The Applicant’s background, the basis 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.

Discussion

5.The applicable legal principles relating to application of this sort are well established.  The role of the Court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  Though in non-refoulement cases, the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. 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)

6.In the Form, the Applicant did not provide any grounds in support of the Leave Application.  In the supporting Affirmation, the Applicant set out the grounds which can generally be summarized as follows:-

(1)  There was procedural impropriety because the Board failed “to properly apply para 2 of the UN committee against Torture General Comment No.2 whereby satisfaction of a national states obligations to conduct sufficient due diligence requires that reforms and means of relief introduced must be effective in any event”.  The Applicant cited JKF CACV 103/2014, 25 November 2014 in support.

(2)  There was procedural impropriety because the Board failed “to conduct sufficient inquiry into the relevant country of origin conditions” and failed “to consider that [the Applicant] would face serious risk from the loan creditor organization who will harm [the Applicant] because of failing to repay the debt”.

(3)  There was procedural impropriety or irrationality in that the Board failed to provide reasons “for assessment of Lack of BOR 3 risk and/or sufficient basis to support conclusion of lack of BOR 3 risk”.

(4)  There was error or misdirection in law in that the Board failed “to take into account the considerations of psychological strain and threats to [the Applicant] personally or threats to [the Applicant] directly to kill [him]”.

(5)  There was procedural impropriety because the Board failed to consider the Applicant’s fear that his enemies were still looking for him because he could not repay the loan.  The Applicant could not relocate to other places because they could easily trace him wherever in his country.

(6)  There was no sufficient basis to conclude that the Applicant and his family members would not be at risk of being subjected to torture and/or CIDTP (as defined below) upon refoulement.

7.I do not consider any of the above grounds meritorious.  I shall briefly state my reasons hereinbelow.

8.In relation to point (1), it should be noted that the Applicant had previously made a torture claim under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the “Convention”) (now Part VIIC of the Immigration Ordinance (Cap. 115)).  The said claim was rejected by the Director in the decision dated 20 April 2012.  The Applicant then submitted another application claiming protection against Cruel, Inhuman or Degrading Treatment or Punishment (“CIDTP”) under Article 3 of the Hong Kong Bill of Rights.  In the Director’s decision dated 24 July 2018, it was made clear that the decision of the Applicant’s previous torture claim would not be reviewed under the Unified Screening Mechanism (USM).  Therefore, the Applicant’s present claim for non-refoulement protection was assessed on all applicable grounds other than risk of torture under Part VIIC of the Immigration Ordinance (Cap. 115) (as it had already been determined in the previous decision).  This was also acknowledged in the Board’s Decision (see paragraph 1 of the Board’s Decision).

9.In the premises, the Applicant’s contention that the Board had failed to apply paragraph 2 of the General Comment No. 2 issued by the Committee Against Torture relating to Article 2 of the Convention is misconceived.  The Applicant’s claim under the Convention had already been determined in the previous decision of the Director dated 20 April 2012.  It did not fall under the scope of the claim before the Board.  In any event, the said paragraph 2 is only a comment explaining the nature of Article 2 of the Convention. 

10.The Applicant also complained that the Board had focused too much on how the overall security situation in Nepal has improved, rather than whether such alleged improvement could eliminate the risk allegedly faced by the Applicant.

11.I do not consider such Applicant’s contention meritorious.  To start with, it is important to note that the Board had, having considered and analyzed the evidence, found that the level of risk of the Applicant being subject to death or ill-treatment to the requisite level from the Madeshi Mocha Forum (the “Forum”) if he is to be refouled to Nepal is low (paragraph 19(a)-(d) of the Board’s Decision).  The Board was entitled to come to that finding based on the evidence and I see no errors in the Board’s Decision in this regard.

12.Whether there is adequate protection by the Nepalese Government must be considered in the context of the risk involved.  In the present case, having already found that the risk in question is low, the Board then proceeded to consider the question of state protection (paragraph 19(e)-(l) of the Board’s Decision).  There is nothing to suggest that the Board had taken into account irrelevant matters or had failed to take into account any relevant materials in the process.  The Board was entitled to conclude that in the context of the present case and in light of the low risk involved, the Nepalese Government can provide adequate protection to the Applicant to further reduce, if not negate, any of the risks of danger he had raised (paragraph 19(l) of the Board’s Decision).  I do not consider the Board’s Decision flawed in any sense.

13.The reliance of JKF is misconceived.  In that case, the Board had failed to consider and apply the concept of “extended acquiescence”.  In the present case, the Applicant has failed to identify precisely what the Board was alleged to have failed to consider.  The Board had applied the correct legal principles in coming to the conclusions. 

14.In relation to point (2), the Applicant’s criticism that the Board had failed to conduct sufficient inquiry relating to the COI is vague and lacks particulars.  The Board had plainly considered all the relevant COI before it (see paragraphs 12 to 15 of the Board’s Decision).  The Applicant has not explained what inquiry he alleged the Board ought to make and which it had failed to do so.

15.In so far as the Applicant contended that the Board had failed to consider the risk the Applicant would allegedly face from the loan creditor because of his failure to repay the debt, such contention is wholly devoid of merits.  The Applicant never mentioned any loan creditor in the claim.  The sole basis of his claim was that he would be killed or subject to ill-treatment by the Forum if he is to return to Nepal (paragraph 2 of the Board’s Decision) because of a previous scuffle with the people who claimed to represent the Forum (see paragraphs 13 to 14 (on pages 13 to 15) of the Board’s Decision). 

16.In relation to point (3), contrary to the Applicant’s contention, the Board had clearly considered and explained the basis of rejecting the Applicant’s claim under “BOR 3” (see paragraphs 16 to 17, 19 to 20 of the Board’s Decision).

17.In relation to point (4), it is unclear precisely what “psychological strain and threats” the Applicant was referring to.  As mentioned above, the Board had considered the evidence and concluded that the risk or likelihood of threat is low.  The Board was entitled to come to that conclusion.  The Board had to and did in fact assess the evidence objectively.

18.In relation to point (5), the Applicant’s contention relating to his inability to repay the loan is again wholly unmeritorious because the Applicant never mentioned about any loans as the basis of his claim. 

19.I also do not see any error in the Board’s Decision relating to relocation (paragraph 19(m) to (q) of the Board’s Decision). 

20.Finally, the Applicant’s contention in point (6) above is vague and lacks particulars.  I am satisfied that the Board was entitled to come to the conclusions it did based on the evidence and its analysis of the same.

21.In short, I have considered the Board’s Decision in details.  I do not find any error of law, procedural unfairness or irrationality.  Neither has the Applicant been able to demonstrate any of the same.  The Board’s Decision was comprehensive with adequate reasons provided.  It satisfies the enhanced Wednesbury test and is not Wednesbury unreasonable or irrational.  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.

22.Leave application of this sort is meant to be a filtering process and I am not expected to give elaborated reasons for my decision (see Re Zunariyah [2018] HKCA 14, at §23).  Suffice for me to state that in reaching the decision, I have considered all the relevant documents before me, as well as the grounds advanced by the Applicant.    

23.On 2 April 2025, the Court received a letter from the Immigration Department, which indicated that the Applicant had on 13 February 2025 already indicated by letter that he now wished to go back to his country and he wanted to cancel his non-refoulement claims (including the Leave Application).  A copy issued by the Applicant dated 13 February 2025 was attached to the said letter issued by the Immigration Department.  This Court is surprised that the Immigration Department only informed the Court of the letter 1.5 months afterwards, and after the hearing had taken place.  The Applicant also did not inform the Court of his intention in the telephone call on 11 March 2025 referred to above.  As a result, considerable time had been spent on considering the Leave Application.  Given I had already considered and decided on the Leave Application as indicated above, I consider it appropriate to dismiss the Leave Application. The result would be the same given that the Applicant had also indicated that he wanted to withdraw the Leave Application (See Manik MD Mahamudun Nabi [2022] HKCA 471, at §19).

Conclusion

24.In the premises, I make an order that the Form be amended as described above and the Leave Application be dismissed.

Dated the 9^th day of April 2025

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

[1]https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003767_2019_files/the_Board's_Decision.pdf