Tamang Jyoti v. Torture Claims Appeal Board

HCAL 914/2020

[2025] HKCFI 3262

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 914 OF 2020

Application for leave to apply for judicial review
NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

	consideration of the documents only; or
	consideration of the documents and oral submissions by the applicant in open court;

Order by Deputy High Court Judge Michael WONG:

1.   On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board”, “Director of Immigration” be added as the putative interested party, and the decision in respect of which relief is sought be amended to “Torture Claims Appeal Board’s decision dated 31 January 2019”.

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

Observations for the applicant:

The Leave Application

1.By way of Form 86 dated and filed on 15 May 2020, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Director of Immigration (“the Director”) dated 16 May 2018 (“the Director’s Decision”), and the decision of the adjudicator of the Non-refoulement Claims Petition Office dated 31 January 2019.

2.The adjudicator was in fact making the decision dated 31 January 2019 as a member of the Torture Claims Appeal Board ("the Board"). The adjudicator was not making the decision in any capacity on behalf of the Non-refoulement Claims Petition Office, which is just an office providing administrative and secretariat support to the members of the Board and does not have any power to determine the applicant’s appeal/petition.  Thus, the decision dated 31 January 2019 should in fact be the Board’s decision (“the Board’s Decision”).

3.Only the Board’s Decision is reviewable by judicial process and not the Director’s Decision, as the Director’s Decision was superseded by the Board’s Decision and is no longer susceptible to judicial review (see Re Moshsin Ali [2018] HKCA 549).

4.At the oral hearing of the Leave Application before this court on 20 May 2025, this court explained the above principle to the applicant.  After the explanation, the applicant confirmed that the decision in respect of which relief is sought in the Leave Application is just the Board’s Decision.

5.Thus, this court will only consider the Leave Application in respect of the Board’s Decision.  The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000914_2020_files/the_Board's_Decision.pdf

6.The Board decided that the applicant was not entitled to non-refoulement protection in Hong Kong on any of the applicable grounds under the Unified Screening Mechanism (“the USM”) and confirmed the Director’s Decision accordingly.

Amendments

7.In Form 86, the applicant named the Director and the adjudicator of the Non-refoulement Claims Petition Office as the putative respondents and did not name any putative interested party, when only the Board should be the putative respondent and only the Director should be the putative interested party. 

8.This court therefore makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board” and to add “Director of Immigration” as the putative interested party.

9.As aforesaid, the decision in respect of which relief is sought is just the Board’s Decision, and hence, on this court’s own motion, it is amended to “Torture Claims Appeal Board’s decision dated 31 January 2019”.

Late application

10.By virtue of Order 53, rule 4(1) of the Rules of the High Court, Cap 4A, the applicant had to make the Leave Application within 3 months when the grounds for the Leave Application first arose, ie when the Board’s Decision was made.

11.However, the applicant filed Form 86 on 15 May 2020, which was more than 15 months after the Board’s Decision (made on 31 January 2019).  The applicant was hence late for more than 12 months in making the Leave Application, and this court has to consider whether there is any good reason to extend the time for the applicant to make the Leave Application.

12.As held in AW v Director of Immigration [2016] 2 HKC 393, the criteria for granting an extension of time are:

(i)      the length of the delay;

(ii)     the reason for the delay;

(iii)    the merits of the intended application; and

(iv)    any prejudice to the putative respondent and to public administration.

13.The applicant did not make any application for extension of time and provided no explanation for the delay in making the Leave Application on papers.  At the oral hearing of the Leave Application, the applicant explained the lateness by saying that he was detained by the police for 11 months and 2 days in 2017.  This explanation cannot be an excuse for the lateness, as the Board’s Decision was made after his release from detention. 

14.The applicant went on to say that he did not receive the letter from the Board and had no knowledge that a decision was made until he went to the Immigration Department in February or March 2019 to sign some papers.  If that were true, the applicant could still have made the Leave Application within time, as the Board’s Decision was made on 31 January 2019.

15.The applicant then explained that he needed to find an expert for advice and to raise money to pay the filing fee.  He said that he borrowed money from his friends within 2-3 days, and the Leave Application was filed only 4-5 days after he found an expert to advise him.

16.The applicant’s explanation for the delay is far from satisfactory.  If what he said was true, ie he came to know about the Board’s Decision in February or March 2019, he was still late for more than a year after he was aware of the Board’s Decision.  It was absolutely unreasonable for the applicant to wait for his friends to lend him money and his so-called expert to give him advice for over a year.

17.Moreover, there is also no merits of the intended judicial review as discussed below.  Having considered the above criteria, this court is not prepared to grant any extension of time to the applicant to file the Leave Application even if there was such an application. The Leave Application can therefore be dismissed on the ground of being made out of time alone.

18.Nevertheless, for the sake of completeness, this court will consider the merits of the Leave Application as discussed below.

The applicant’s case

19.It is not necessary for this court to repeat the details of the applicant’s case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above.

20.In sum, the applicant claimed for non-refoulement protection because he would be in danger if refouled to Nepal, as he was unable to repay a loan he borrowed from a creditor to rebuild his family home.  The applicant believed that the creditor was a policeman.

Oral hearing

21.The applicant requested for an oral hearing of the Leave Application, and his case was heard on 20 May 2025.  The applicant said that he could not return to Nepal as he still could not repay the loan borrowed from the creditor.  

22.When this court asked the applicant to elaborate on the four grounds mentioned in a document attached to his Form 86 with the heading “Grounds on which Relief is sought”, he did not want to do so and had nothing to add.

Grounds for judicial review

23.The applicant is required to identify clearly the grounds for his intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).

24.The four grounds mentioned in the document annexed to the applicant’s Form 86 are reproduced as follows:-

“1. The Applicant believes that the Director(s) of Immigration and the Adjudicator of Appeal Board reached the decision wrongly in assessing his Non-refoulement claim. He believes that these decisions were not reasonable and fair (as required by the Wednesbury test). Indeed, the right to life is protected under Article 28 of the Basic Law and Article 2 of the Bill of Rights. In practice, the right to life is mainly protected by the criminal law and it must be protected from extra-judicial killings such as the applicant may face if he would be deported to his country.

2. From the Director’s Decision, it was evident that the director has failed to appreciate or give the proper importance or weight-age to the presence of state Acquiescence in the Applicant’s case. This has indeed led to an unfair outcome of rejecting the Applicant’s non-refoulement claim. The applicant was tortured at the Behest and the state law enforcement agencies as well as those in the high ups of political circles. It is submitted that the state would be rendered liable to the applicant by cause of the state and its public officials failing to provide reasonable protection for its citizens under the duty of due diligence.

3. The Applicant submits that the Director has failed to take such argument into account or that the Director has failed to give enough weight to such argument before reaching the Decision. Further, the applicant submits that although the Director had listed relevant COIs which support the Applicant’s aversions that the police in his country would not be able to protect. The Director failed to consider or give enough weight-age to those evidence and ruled otherwise. My decision was issued without hearing.

4. This was a clean case of unfair attitude shown by the Director which in itself is enough to render his Decision void.  In Fact, the corruption and incompetency of the administration in his country is still a very serious problem.  Various human rights organization has complied reports on the matter which stated testament to the applicant’s assertions.  Further, the director has failed to attain the high standard of fairness required by the Wednesbury test in the decision with the arguments put forward above.  As such, the decision of the director should be considered unreasonable in the scope of Public Law.  The Applicant respectfully asks the Court to grant leave to the Applicant for judicial review.”

25.The aforesaid grounds were in fact used by many applicants in similar applications as their grounds for applying leave to judicially review the Board’s decisions.  It is like a template for such applicants and they just used the grounds without any regard to their own situations.  Nevertheless, as the applicant is relying on the above grounds to make the Leave Application, this court will still deal with the grounds as discussed below.

Discussion

26.As aforesaid, the Director’s Decision was superseded by the Board’s Decision and the applicant has already confirmed that the decision in respect of which relief is sought in the Leave Application is just the Board’s Decision.  Paragraphs 2, 3 and 4 of the applicant’s grounds were directed at the Director only.  Hence, they could not be used to challenge the Board’s Decision and can be simply ignored. 

27.Paragraph 1 of the grounds was directed at both the Director and the adjudicator of the Board, but only those allegations against the adjudicator of the Board could be relevant to the Leave Application.

28.In paragraph 1 of the grounds, the applicant alleged that the adjudicator of the Board reached the Board’s Decision wrongly and it was not reasonable and fair as required by the Wednesbury test.  However, the applicant did not state how or why the Board’s Decision was wrong, unfair and unreasonable.  It does not help the applicant to establish any ground by just mentioning the right to life in paragraph 1. 

29.As held by the court of appeal in Re Salim Ahmed alias MD Salim [2020] HKCA 244, “general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case”.  Thus, what the applicant alleged in paragraph 1 could not establish any valid ground to challenge the Board’s Decision when the allegations are so vague and general without any requisite particulars related to the applicant’s case.

30.In any event, the Board did assess the applicant’s risk of right to life.  The Board was not satisfied that the applicant would suffer any death penalty, arbitrary deprivation of life or genocide on the basis of a loan from his creditor.

31.It is therefore this court’s finding that the applicant has failed to establish any valid ground for challenging the Board’s Decision.

32.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 [2018] HKCA 524).

33.Thus, despite that the applicant did not advance any valid ground for the intended judicial review, this court will still scrutinize the Board’s Decision for any errors of law, procedural unfairness or irrationality.

34.In assessing the applicant’s appeal, the Board arranged a hearing on 24 December 2018.   However, the applicant failed to attend the hearing.  The Board also received no response from the applicant for his written explanation for his failure to attend the hearing within the specified time limit.  The Board was satisfied that all reasonable efforts were made to locate the applicant and inform him of the hearing, and it was reasonable to proceed to a decision without making any further efforts to contact him.

35.As can be seen from the Board’s Decision, the Board identified a number of matters which required further details from the applicant.  Without the applicant’s presence at the hearing, the Board could only determine the applicant’s case based on the evidence available to the Board.  After considering the evidence available, the Board was not satisfied that the applicant borrowed money from his creditor; that he was threatened by his creditor or his associates; or that he genuinely feared harm in relation to this issue.  The Board was also not satisfied that the applicant would suffer any harm covered by the applicable grounds under the USM upon his return to Nepal. 

36.Thus, the Board did deal with the applicant’s alleged danger in the Board’s Decision and concluded that the applicant was not entitled to non-refoulement protection on any of the applicable grounds under the USM.

37.It is trite that the applicant has the burden of establishing that he would be in danger of being subjected to torture if deported (see Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289 and TK v Michael C Jenkins, Esq, CACV 286/2011).  The applicant’s absence at the Board’s hearing and his lack of response to the Board’s letter inviting him to explain his absence showed that he did not actively seek to substantiate his claims.

38.It is clear from the Board’s Decision that due effort had been made by the Board to remind the applicant of the Board’s hearing and that the notice of hearing was duly served on the applicant.  Given the circumstances, the Board was correct to proceed to determine the applicant’s claim in his absence.

39.The assessment of evidence, country of origin information and risk of harm was primarily within the realm of the Board, and the Board was entitled to come to its own conclusion.  This court finds nothing wrong or unreasonable in the way the Board reached its decision.

40.Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM, the burden of proof and the standard of proof.  The Board also correctly identified the issues and observed a very high standard of fairness.  This court could detect no errors of law, procedural unfairness or irrationality in the Board’s Decision. The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision.

41.As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, for the court to grant leave to apply for judicial review, the claim has to be a reasonably arguable claim which enjoys realistic prospects of success.  It is the view of this court that the applicant has failed to establish such a claim and hence leave must be refused.

Conclusion

42.For reasons aforesaid, the Leave Application is dismissed for being made out of time and also for devoid of merits.

Dated the 29^thday of July 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