Khatri Pramod v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
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HCAL 1279/2020 [2025] HKCFI 3152 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1279 of 2020
Application for Leave to Apply for Judicial Review Following;
Order by Deputy High Court Judge (Non-refoulement Claims) Val Chow:
Observations for the Applicant: Introduction 1.By Form 86 filed on 24 June 2020 (the “Form 86”), 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 10 June 2020 (the “Board’s Decision”). 2.In the Form 86, the Applicant has named both the Board and the Director of Immigration (the “Director”) as the proposed respondents. 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 my own motion. 3.The oral hearing of the Leave Application (“Hearing”) took place before me on 15 July 2025 and the Applicant attended in person. 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 fears that he will be seriously harmed or killed by Maoist militants if he returns to Nepal. Discussion 5.It is trite law that determination of the merits of a non-refoulement claim is essentially within the remit of the Director and the Board, who are the primary decision-makers in the evaluation of the evidence based on the materials available to them. A court will not usurp their primary decision-making role in a judicial review, which is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh in the absence of any legal error. A finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524. 6.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). Hence, I shall only state my reasons briefly. 7.In the Form 86, the Applicant did not provide any grounds in support of the Leave Application. 8.In the supporting affirmation, the Applicant merely claimed that the Board’s Decision disregarded the danger and threats faced by him should he return to Nepal. 9.At the Hearing, the Applicant confirmed with me that he had nothing else to add to his Leave Application. 10.Having examined the Board’s Decision with anxious scrutiny, I do not find any error of law, procedural unfairness or irrationality. 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. 11.The Board’s Decision was comprehensive with adequate reasons provided for its findings. In particular, the Board was plainly correct in finding that there was no evidence of any real risk of any form of serious harm, given that the Maoist Party has since become an established political party such that it would no longer be necessary to compel the Applicant to join its ranks by threats of violence. In any event, the Applicant has been out of Nepal since 2009, so the risk of danger to him is immaterial if he returns to Nepal (§§28-29 of the Board’s Decision). 12.In the circumstances, the Board’s Decision satisfies the enhanced Wednesbury test and is not Wednesbury unreasonable or irrational. 13.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 14.In the premises, I make an order that the Form 86 be amended as described above and the Leave Application be dismissed. Dated the 1st day of August 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
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Cases cited in this judgment