Krishna Limbu v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2963/2019

[2025] HKCFI 1919

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2963 OF 2019

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BETWEEN

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J U D G M E N T

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THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 20 September 2019 of the Torture Claims Appeal Board (“the Board’s Decision”), dismissing the appeal against the Director’s Decision as described below.

2.The applicant asked for a hearing. However, he was absent at the hearing on 2 April 2025. I shall deal with his application on the papers.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

4.The applicant is a national of Nepal. He arrived in Hong Kong on 10 September 2010 and was refused permission to land.

5.The applicant lodged his torture claim on the same day, which was refused by the Director on 31 August 2011, and the applicant’s petition against that determination was refused on 21 September 2011. In due course, the applicant lodged his non-refoulement claim.

6.The applicant’s claim was based on his fear of being harmed or killed by members of the Madhesi Forum (“MF”) because he had a fight with them and that his elder sister and others due to an outstanding loan.

7.According to the applicant, there were three incidents with the MF that began after the applicant and his cousins refused to join the MF, which led to a fight that lasted for about 1 or 2 hours and subsequent attacks from the MF. There was also an outstanding loan to finance his trip from his elder sister and 2 others but the applicant was unable to repay the loan and was threatened. The applicant also mentioned that he mistakenly killed a calf which was against Nepalese law. Details of his claim are set out at paragraph 9 of the Notice of Decision dated 19 July 2018 by the Director (the “Director’s Decision”).

The Director’s Decision

8.As the applicant’s torture claim had been refused, the Director considered the applicant’s claim in relation to the following risks:

(a) risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

(b) risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

(c) risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

9.By way of the Director’s Decision, the Director assessed the applicant’s claim and dismissed his claim. In summary, the Director found that: it was not unreasonable to believe that the grudge from MF to have dissipated after such long lapse of time, the risk of harm was assessed to be low; there was no evidence to show that the elder sister and the others are resourceful enough to search for the applicant throughout Nepal; the fear of imprisonment for killing a calf by mistake was never mentioned during his torture claim determination [17-23]; state protection is available [24]; and internal relocation alternatives are available and reasonable if he returns to Nepal [25].

The Board’s Decision

10.The applicant appealed the Director’s Decision to the Board. On 27 March 2019, the Board conducted an oral hearing for his appeal. At the hearing, the Board found that the applicant had not proved that there was a real likelihood for the alleged risks to be materialized and therefore, the risk was considered to be low [41-43]. In any event, state protection was available [44-48, 54], and internal relocation was viable [57-61]. In conclusion, the Board held that the applicant’s claim failed under all applicable grounds. It therefore dismissed his appeal and confirmed the Director’s Decision.

Application for leave to apply for judicial review of the Board’s Decision

11.The applicant filed the Form 86 on 9 October 2019 for leave to apply for judicial review of the Board’s Decision. The applicant enclosed grounds which are summarized as follows: the Director’s and Board’s Decisions were wrongly assessed and not reasonable and fair, the Director’s Decision failed to appreciate or give proper weight to the presence of state acquiescence, and the Director failed to attain the high standard of fairness required.

12.In the applicant’s affirmation in support of his application, the applicant exhibited the Board’s Decision but did not elaborate or provide further details or any particulars for his grounds.

DISCUSSION

13.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

14.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

15.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and 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 or procedural unfairness or irrationality in the decision of the Board.”

16.The applicant has raised no valid ground to challenge the Board’s findings.

17.The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.

DISPOSITION

18.I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.

The applicant was unrepresented and did not appear.