Sudip Tamang v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 3148/2019

[2025] HKCFI 3460

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3148 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 present in open court;

Order by Deputy High Court Judge K.W. Lung:

1.   The extension of time for the application for Judicial Review of the Board’s 2^nd Decision be refused; and

2.   The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

THE APPLICATION

1.The applicant is an illegal immigrant.  He lodged a non-refoulement claim with the Director of Immigration (“the Director”), who had made the following Decisions:

a.  Notice of Decision dated 12 September 2014 dismissing his claim on Torture risk, BOR 3 risk and Persecution risk (“the Director’s 1^st Decision”); and

b.  Notice of Further Decision dated 17 January 2017 dismissing his claim on BOR 2 risk (“the Director’s 2^nd Decision”)

2.The applicant appealed to the Torture Claims Appeal Board (“the Board”), which had made the following Decisions:

a.  Decision dated 9 November 2015 dismissing the appeal against the Director’s 1^st Decision (“the Board’s 1^st Decision”); and

b.  Decision dated 21 June 2019 dismissing the appeal against the Director’s 2^nd Decision (“the Board’s 2^nd Decision”).

3.The applicant applies for leave to apply for judicial review of the Board’s 2^nd Decision.  His application is late.  His application shall not be later than 3 months from the date of the Board’s 2^nd Decision[1], which expired on 21 September 2019.  His application was filed on 23 October 2019, which is late for more than 1 month.  This issue will be dealt with below.

4.Since the facts in support of the Board’s 2^nd Decision are the same in support of the Board’s 1^st Decision, this Court will also consider the Board’s 1^st Decision as well in this application.

5.The applicant asked for a hearing.  Pursuant to Order 53, rule 3(3) of the Rules of the High Court, he appeared before the Court on 20 June 2025.

The applicant

6.The applicant, aged 48, is a national of Nepal.  He was arrested by police on 7 November 2007 and admitted that he sneaked into Hong Kong by speedboat illegally.  He was referred to the Immigration Department where he lodged a non-refoulement claim on the basis that, if refouled, he will be harmed or killed by the Maoists in Nepal because he had refused to join them when he was a student and the leader had threatened to harm him.

7.Details of the applicant’s story can be found in paragraphs 1-12 of the Board’s 1^st Decision.

The Director’s Decisions

8.The Director considered the applicant’s claim in relation to the following risks:

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  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”);

c.  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

d.  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 the Director’s 1^st and 2^nd Decisions, the Director refused the applicant’s claim in respect of the above applicable risks for the reason that it was unsubstantiated.

The Board’s Decisions

10.The applicant appealed the Director’s Decisions to the Board.  On 13 December 2014, the Board conducted an oral hearing.

11.In the Board’s 1^st Decision, the Board had made the finding of the facts below, dismissed his appeal and confirmed the Director’s Decision.

a.  The applicant had not suffered any ill-treatment at the hands of the Maoists. [23]

b.  He confirmed that he was only threatened on one occasion by the leader and the threat was never materialized. [24]

c.  He has no good reason to believe that he will be harmed if he returns to Nepal. [34]-[39]

d.  In any event, the option of internal relocation to Kathmandu is viable. [53]-[56]  See hyperlink https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003148_2019_files/1st_Board's_Decision.pdf.

12.In the Board’s 2^nd Decision, the Board found that the applicant’s Notice of Appeal was file out time for 4 months and 13 days. [7]  The Board did not accept the applicant’s explanation that he did not receive the Director’s letter advising him to submit additional materials for the BOR 2 claim.  The Board went further to consider the materials he had submitted to it and it came to the conclusion that there were no special circumstances which would render it unjust not allow the late filing of the Notice of Appeal.  This is in effect, dismissing his appeal against the Director’s 2^nd Decision.  See hyperlink https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003148_2019_files/2nd_Board's_Decision.pdf.

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

13.The applicant has filed Form 86 dated 23 October 2019 for leave to apply for judicial review of the Board’s 2^nd Decision.

14.In his statement and affirmation in support of his application, the applicant has raised the grounds as summarized below.

a.  Procedural impropriety/unfairness: the adjudicator failing to make sufficient research in the country of origin information (“COI”) or focusing on his circumstances; failing to obtain psychological and psychiatric reports; applying incorrect standard of proof; failing to fix a hearing date for him; there was no oral hearing; he was not legally represented; relying on outdated COI; and the adjudicator had never been to his country to understand his situation.

b.  Irrationality: the adjudicator having cherry-picked the COI; failing to find whether there exists in Pakistan a consistent pattern of gross, flagrant or mass violations of human rights; failing to consider state protection; relying on inaccurate or irrelevant facts.

DISCUSSION

15.As mentioned in paragraph 3, this application is late.  In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted.  I shall consider the merits of the applicant’s case.

16.The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.  Before me, I asked if he considered that the Board’s Decisions were wrong.  He said that he did not know if they were wrong, but he wanted the Court to review them.   

17.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.”

18.His admissions before the Court show that he was not conscious of those grounds under paragraph13, which have become insignificant in support of his application.  Suffice it to say, most of the grounds are his bare assertions without any evidence in support.  They are not valid ground.  Re: Salim Ahmed [2020] HKCA 244.  The allegation that there was no oral hearing is obvious incorrect.  He did not raise any issue of his psychology or psychiatry before the Board.  He was not entitled to free legal representation at all stages of the proceedings.  Re Ahmed Syed Rafia [2018] HKCA 178.  It was not necessary for the adjudicator to go to his country to understand his situation as he was entitled to rely on the COI.

19.I agree with the Board’s 2^nd Decision.  In any event, as the applicant fails in his BOR 3 risk, there is no arguable ground for BOR 2 risk.  The Court of Appeal in Kulwinder Kaur v Director of Immigration and Torture Claims Appeal Board/Non-refoulement Claims Petition Office [2022] HKCA 48, Hon Chu, JA (as she then was), Barma JA and Au JA ,7 January 2022, held:

“59. … upon determining that there is no BOR 3 risk, there is no arguable ground for any BOR 2 risk: see AA v Sweden (2017) 64 EHRR 20 at [52] and [96]; RM v Gerard Paul Muttrie Esq (unrep., HCAL 166/2015, 3 March 2016) at [52].”

20.The applicant fails to raise any valid ground to challenge the Board’s Decisions.

21.In the circumstances, the applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s 2^nd Decision.

DISPOSITION

22.I refuse to extend time for the applicant to apply for leave to apply for judicial review of the Board’s 2^nd Decision.  Accordingly, I dismiss his application.

Dated the 2^nd day of September 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] . Delay in applying for relief (O. 53, r. 4)

(1)   An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made. (L.N. 356 of 1988)

(2)   Where the relief sought is an order of certiorari in respect of any judgment, order, conviction or other proceeding, the date when grounds for the application first arose shall be taken to be the date of that judgment, order, conviction or proceeding.