Case Document

100%

HCAL 1561/2020

[2025] HKCFI 3951

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNO 1561 OF 2020

	Gurung Nol Maya	Applicant
	and
	Torture Claims Appeal Board	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

consideration of the documents only; or

consideration of the documents and oral submissions by the Applicant in open court / the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

1. Extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 21 May 2019 be refused; and

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

Observations for the Applicant:

1.The Applicant is a 50-year-old national of Nepal who arrived in Hong Kong on 1 February 2005 as a visitor with permission to remain as such up to 8 February 2005 when she did not depart and instead overstayed, and was arrested by police more than 9 years later on 15 April 2014, and for which she was subsequently convicted of the offences of overstaying and obtaining pecuniary advantage by deception, and was sentenced to prison for 12 months. After she was discharged from prison and was referred to the Immigration Department for deportation, she raised a non-refoulement claim for protection on the basis that if she returned to Nepal she would be harmed or killed by the family of her deceased husband who blamed her for her husband’s death and/or by the Nepalese civil war caused by the Maoists and the Tamuwan fighters. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised as a Hindu in Nawalparasi District, Lumbini Zone, Nepal. After leaving school she ran a grocery store to make her living, the married her Muslim husband despite his family’s objection due to their different religions, and raised a family with 2 children in her home district.

3.In 1996 a civil war started in Nepal when the Communist Party of Nepal (Maoist) (“Maoists”) and the Tamuwan fighters fought with the Nepalese government over various political issues that the Applicant and her family often faced threats and intimidations from the Maoists and the Tamuwan in the neighborhood when they would just come into her grocery store to take food and other goods without paying for them, and on one occasion in October 2004 some Tamuwan fighters beat both the Applicant and her husband violently, and before they left they set fire to their store and burnt it down.

4.As a result the Applicant and her family became fearful for their safety and fled to Charnumber to take shelter in a friend’s place, and on 1 February 2005 the Applicant by herself departed Nepal for Hong Kong where she subsequently overstayed and went into hiding.

5.In 2008 the Applicant was informed by a friend in Nepal that her husband had subsequently been killed by the Tamuwan fighters, and for which his Muslim family blamed the Applicant for bringing bad luck to him and threatened to kill her in revenge, and so she was afraid to depart Hong Kong to return to Nepal, and upon her subsequent arrest by the police she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 12 June 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.By a Notice of Decision dated 11 July 2018 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of her absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention Relating to the Status of Refugees (“Persecution Risk”).

7.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that there will be any real and substantial risk of her being harmed or killed by her perceived enemies upon her return to Nepal due to the absence of or low intensity and frequency of past ill‑treatment from them, that there is no evidence of any real intention of her husband’s family to seriously harm or kill her or of any political reason for the Maoists or the Tamuwan fighters to specifically target her for harm, nor is it accepted that there would still be any adverse interest in her from any of them after all these years since she left the country in 2005 when the Nepalese war has ended since 2006 with the Maoists accepted as one of the legitimate political party, while state or police protection would be available to the Applicant as regard any risk from her husband’s Muslim family in the absence of any official involvement, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Nepal with a large population of 29 million people spread across a vast territory of more than 147,000 square kilometers that it would not be unduly harsh for the Applicant as an able‑bodied adult with working experience to move to other areas of the country away from her home district in large cities such as Kathmandu where it would be difficult if not impossible for her husband’s family to locate her.

8.On 18 July 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which she attended an oral hearing on 25 March 2019 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 21 May 2019 her appeal was dismissed by the Board which also confirmed the Director’s decision.

9.In its decision[1] the Board found material inconsistencies discrepancies and contradictions in the Applicant’s evidence that it did not find her to be a reliable witness and rejected the credibility of her claim of fear of harm from any of her perceived enemies such as her husband’s family or the Maoists or the Tamuwan fighters that caused her to leave her country to come to Hong Kong to seek protection, that her credibility was further undermined by her failure to raise her claim upon first arriving in Hong Kong in February 2005 until more than 9 years later in April 2014 when she was arrested by police, that even if her account of events prior to her departure of Nepal were true that there was no reliable evidence of any real intention of any of her perceived enemies to seriously harm or kill her or that any of them would still have any adverse interests in her after all these years since she left the country in 2005, and that in any event the Nepalese civil war has since ended in 2006 with the Maoists accepted as a legitimate political party by the Nepalese government, and that any threats from her husband’s family were private matters between them only without any official involvement that state or police protection would be available to the Applicant upon her return to Nepal as well as reasonable internal relocation alternatives for her to move safely to other parts of the country away from her home district without any risk of being located by anyone that her claim for non‑refoulement protection failed on all applicable grounds.

10.On 24 July 2020 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in her Form or her supporting affirmation of the same date to which she just attached a copy of the decision only without putting forth any proper ground for her intended challenge, nor did she request any oral hearing for her application.

11.By then the Applicant was also out of time with her application, as Order 53 rule 4(1) of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the day when grounds for the application first arose unless the Court considers that there is good reason to extend the period within which the application shall be made.

12.As the last day of the three-month period for her to file her Form 86 fell on 21 August 2019, the Applicant was therefore some 11 months late with her application, and in considering whether to extend time, the Court shall have regard to (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: AW v Director of Immigration [2016] 2 HKC 393.

13.In the Applicant’s case, a delay of 11 months must be considered as very substantial and inordinate, for which she did not provide any explanation or reasons in her Form or affirmation, and as the record shows that the decision as sent on the same day of 21 May 2019 to her then reported address without being returned through undelivered post, I am unable to see any good or valid reason for her such serious delay.

14.As for the merits, if any, of her intended application, as noted above that the Applicant has also failed to put forward any proper ground for her intended challenge, and in the absence of any error of law or irrationality or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any merits in her intended application either.

15.As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: 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.

16.In the Applicant’s case, the Board rejected her claim essentially on its adverse finding on her credibility for the thorough and detailed analysis and reasoning set out in its decision with the benefit of hearing her in her oral evidence and her answers to questions raised of her claim, and in the absence of any error of law or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

17.Furthermore, the fact is that it has also been established by both the Director and the Board in their respective decisions that the Nepalese civil war has long ended since the Applicant left the country, and that the remaining risk of harm in her claim from her husband’s Muslim family even if real is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of Nepal, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

18.In the premises, and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

19.For all these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reason for her such serious delay, I refuse to extend time and accordingly dismiss her leave application.

Dated the 8^th day of September 2025

(Klein Tse)
for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or the Applicant’s solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 8 September 2025 Gurung Nol Maya Applicant’s ref. no.: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 8 September 2025 Torture Claims Appeal Board Putative Respondent’s ref. no.: USM 12559/18/7/309/N498 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 1843/18 (formerly RBCZ 3001863/14) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)