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

HCAL 1918/2020

[2025] HKCFI 4481

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1918 of 2020

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;

Order by Deputy High Court Judge (Non-Refoulement Claims) Martin Wong:

1.  The Applicant’s Form 86 should be amended to name the TCAB Decision dated 21 March 2017 as the decision sought to be reviewed; and

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

Observations for the Applicant:

Introduction

1.By a Form 86 filed on 24 September 2020 (the “Form 86”), the Applicant applied for leave to apply for judicial review of a decision by the Torture Claims Appeal Board (the “TCAB”) dated 21 March 2017 (the “TCAB Decision”), which affirmed a decision by the Director of Immigration (the “DOI”) dated 27 January 2015 in refusing the Applicant’s non‑refoulement protection claim. He named the TCAB as the proposed respondent and the DOI as an interested party.

2.From the case record, the TCAB Decision in fact concerned the DOI’s decisions of 27 January 2015 and also of 28 October 2016, the latter concerning the claim based on BOR2 risks.  The TCAB affirmed the DOI’s refusal in both of these decisions in the TCAB Decision. I amended the Form 86 accordingly on my own motion.

3.The Applicant requested a hearing and attended the same.  When asked if he had anything to add he confirmed that he had not.

4.This application is plainly out of time and there is no application made for extension of time.  For this reason alone, this application falls to be dismissed.  That notwithstanding and insofar as necessary, I proceeded to consider the merits of the application as below.

Background

5.The Applicant is a national of Nepal.  He seeks non-refoulement protection on the basis that he would be harmed or killed by people of a political group that he refused to join or make donation, if he was returned.  His personal background, the relevant facts and relevant procedural history have been sufficiently set out in the TCAB Decision, which can be assessed through a hyperlink[1], and I shall not repeat the same herein.

Discussion

6.In a judicial review, this court does not provide a further avenue of appeal.  Though in non-refoulement case an enhanced standard in scrutinizing the decision of the TCAB is required given the seriousness of the issue at hand, this court should not usurp the role of the TCAB, which together with the DOI are the primary decision-makers.  This 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 TCAB (Nupur Mst v Director of Immigration [2018] HKCA 524, [14(1)]).  There must be a reasonably arguable claim with a realistic prospect of success before leave for judicial review will be granted (Peter Po Fun Chan v Winnie Cheung & Anor (2007) 10 HKCFAR 676).

7.The Applicant raised the complaint that the TCAB Decision was not reasonable or fair in the Form 86.  However, in neither the Form 86 nor the affirmation filed in support of this application did he raise and particular complaints as to any error of law, procedural unfairness or irrationality in the TCAB Decision.

8.Looking at the TCAB Decision, despite the fact that the Applicant remained silent as to any relevant issues or questions [4, 17], the TCAB took into consideration the Applicant’s case and all the materials placed before it [2-4], including the relevant COI [15-16] and the assessment on the Applicant’s credibility [31-33].

9.The TCAB bore in mind the correct principles on the four applicable grounds under the USM in analyzing the Applicant’s claims [5-14, 20-22, 25, 26-28] and concluded that none was made out [18-19, 23-24, 25, 29-10].

10.I do not see any error of law, procedural unfairness or irrationality in the TCAB Decision, despite rigorous examination and anxious scrutiny.

Conclusion

11.For the above reasons, I am not satisfied that this court should intervene by way of judicial review.  I therefore dismiss the application.

Dated the 10^th day of October 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