Gurung Priti v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 3763/2019

[2025] HKCFI 1404

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 3763 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 Applicant being absent in open court;

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

1.   Form 86 be amended on my own motion to name the TCAB as the putative respondent and the DOI as the putative interested party; and

2.   Leave to apply for Judicial Review be dismissed.

Observation for the Applicant:

Introduction

1.By a Form 86 filed on 17 December 2019 (the “Form 86”), the Applicant applied for leave to apply for judicial review of a “decision dated 05-12-2019” and named the Director of Immigration (the “DOI”) as the proposed respondent and also an interested party.

2.According to the papers filed for this application, there was a decision by the Torture Claims Appeal Board (the “TCAB”) dated 5 December 2019 (the “TCAB Decision”), which affirmed the decision of the DOI dated 20 June 2019 (the “DOI Decision”) refusing the Applicant’s non-refoulement protection claim.

3.As such, I amended the Form 86 on my own motion to name the TCAB as the putative respondent and the DOI as a putative interested party.

4.The Applicant did not ask for a hearing of this application and hence I proceeded to deal with it on paper.

Background

5.The Applicant was born and is a citizen of Nepal.  She seeks non‑refoulement protection on the basis of a fear that she will be kidnapped and/or raped by the younger brother of the mayor of the town she had most recently resided in.  Her personal background, the relevant facts and relevant procedural history have been sufficiently set out in the TCAB Decision, which can be assessed through a hyperlink[1], and I shall not repeat the same herein.

Discussion

6.In a judicial review, this court does not provide a further avenue of appeal.  Though in non-refoulement case an enhanced standard in scrutinizing the decision of the TCAB is required given the seriousness of the issue at hand, this court should not usurp the role of the TCAB, which together with the DOI are the primary decision‑makers.  This court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the TCAB (Nupur Mst v Director of Immigration [2018] HKCA 524, [14(1)]).  There must be a reasonably arguable claim with a realistic prospect of success before leave for judicial review will be granted (Peter Po Fun Chan v Winnie Cheung & Anr (2007) 10 HKCFAR 676).

7.In her affirmation filed in support of the Form 86, the Applicant only stated that the TCAB Decision was “unfair and unreasonable”. 

8.In relation to procedural fairness (which I take as what the Applicant was referring to by “unfair”), I see from the TCAB Decision that the Applicant had been afforded multiple opportunities to present her claim [4, 6, 9] :-

8.1  She had made a written representation dated 4 January 2019 when she first made her non‑refoulement claim; this was available before the TCAB;

8.2  She had submitted a Non‑refoulement Claim Form dated 6 May 2019 to the DOI, which was completed with the assistance from a lawyer; this was also available before the TCAB;

8.3  She had participated in an interview in respect of her non‑refoulement claims on 27 May 2019 and the transcript of which was also before the TCAB;

8.4  The TCAB held an oral hearing on 18 October 2019 upon her request, where she was assisted by an interpreter in the Nepali and English languages.

9.As can be seen from the TCAB Decision, the Applicant and the Adjudicator had extensive exchanges during the hearing before the TCAB [25-50] and it is clear that she had been given every reasonable opportunity to establish her claim.

10.As such, although the standard of fairness must be high, I see no basis to challenge the procedural fairness in this case.

11.In relation to rationality of the decision (which I take as what the Applicant was referring to by “unreasonable”), I see from the TCAB Decision that its conclusions on both factual findings [51] and as to the four applicable grounds under the USM [52-71] were arrived at after extensively eliciting the Applicant’s evidence (both written and orally given at the hearing) and analyzing the same, and applying the correct relevant legal principles.

12.As such, I see no irrationality in the decision made by the TCAB and for that matter I see no error of law either.

13.All in all, I do not see any errors of law, procedural unfairness or irrationality in the TCAB Decision, despite rigorous examination and anxious scrutiny.

Conclusion

14.For the above reasons, I am not satisfied that this court should intervene by way of judicial review.  I therefore dismiss the application.

Dated the 16^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