Regmi Krishna Prasad v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1563/2020

[2025] HKCFI 4710

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1563 of 2020

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 the documents and oral submissions by the Applicant in open court;

Order by Deputy High Court Judge (Non-Refoulement Claims) Vincent Lung:    

1.   Form 86 be amended, naming only the Torture Claims Appeal Board/

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 July 2020 (the “Form 86”), the Applicant applied for leave to apply for judicial review against the decision by the Torture Claims Appeal Board (the “TCAB”) dated 18 June 2020 (the “2^nd TCAB Decision”), which affirmed the decision of the Director of Immigration (the “DOI”) dated 26 April 2017.

2.I specifically note that this application is only made against the 2^nd TCAB Decision which concerns the Applicant’s claim under Article 2 of the Hong Kong Bill of Rights Ordinance (“BOR2”), and no more.  This is made clear in the Form 86 at paragraph 1 which specifically refers to BOR2 only.  There was an earlier decision from the TCAB dated 27 January 2017 dismissing other grounds of the Applicant’s non-refoulement claim (the “1^st TCAB Decision”) which does not form part of the present application.  I will nevertheless need to refer to the 1^st TCAB Decision for some background materials; the 2^nd TCAB Decision also refers to the reasoning in the 1^st TCAB Decision.  The procedural chronology is set out in [1.1, 2-4] of the 2^nd TCAB Decision.

3.I amend the Form 86 on my own motion to name only the TCAB as the putative respondent and the DOI as the putative interested party.

4.The Applicant requested for a hearing of this application and he attended the same.  When asked if he had anything to add he confirmed that he had not.

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 the Maoists (apparently the Communist Party in Nepal and had a conflict with the government) if he is to go back because he had refused to join them.  The Applicant contends that various incidents took place in the past which led his brother being killed and the Applicant being attacked.  The Applicant’s personal background and the relevant facts have been fully set out in the 1^st TCAB Decision and the 2^nd TCAB Decision, which can be viewed through a hyperlink[1] [2].  I shall therefore not repeat them.

Discussion

6.The leave application operates as a filtering process and there is no requirement or expectation to give elaborate reasons for my decision: Re Zunariyah [2018] HKCA 14 at [23].  It is sufficient to state my observations after considering the TCAB Decision and the materials adduced by the Applicant.

7.I remind myself that in a judicial review, this court does not provide a further avenue of appeal.  Though in non-refoulement cases 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.  A finding of fact is exclusively within the realm of the TCAB, and 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 at [14(1)].  There must be a reasonably arguable case with a realistic prospect of success before leave for judicial review will be granted: Peter Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676. 

8.In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly: Ho Loy v Director of Environmental Protection (unreported, HCAL 21/2015, 22 December 2016) at [142], and further to make full and frank disclosure of all material facts to be verified by an affidavit.

9.The grounds set out in the Form 86 relate primarily to the complaint that the TCAB decided the case without proper inquiry on the country of origin information (“COI”) [Form 86 paragraphs 17, 24-31].  There is also a complaint that the Applicant was not allowed to submit additional information [Form 86 paragraph 18] and the TCAB failed to consider whether state protection existed [Form 86 paragraph 23].  

10.As can be seen from the 2^nd TCAB Decision, the TCAB took into account the Applicant’s case [1.2] and at [1.3] cross-referred to the 1^st TCAB Decision which explained why the Applicant’s case was incredible: see in particular 1^st TCAB Decision paragraphs 30-33.  As correctly noted by the TCAB, this necessarily means that there is no factual basis for the Applicant’s BOR2 claim.  In any case, the TCAB applied the correct legal principles in respect of BOR2 claims and considered updated COI [7].  It is noteworthy that the Applicant was absent at the hearing before the TCAB and was late in submitting an explanation [5.1-6], and therefore forfeited his opportunity to comment on the updated COI.  Upon analysis, the TCAB held that the Applicant’s allegations were insufficient to make out a BOR2 claim [9-10].

11.I consider that none of the grounds put forward by the Applicant in the Form 86 are made out.  As noted above, the Applicant was absent at the hearing before the TCAB and the TCAB was plainly entitled to consider that there was no proper explanation.  It is therefore not open to the Applicant to complain about the lack of an opportunity to comment on the updated COI (which the TCAB took into account) or that he was not given a chance to put in additional information.  In any case, the TCAB found as a matter of fact that the Applicant’s case is incredible (which is a conclusion that the TCAB was fully entitled to come to), and none of the grounds now put forward by the Applicant will be able to salvage the application.  For completeness, the TCAB did not fail to consider whether state protection existed as alleged by the Applicant because it was repeatedly noted in the 2^nd TCAB Decision that the Applicant’s BOR2 claim is based on the same materials as his claim based on other grounds [4, 6], and state protection featured prominently in the 1^st TCAB Decision (e.g. paragraphs 7-9, 14-18).

12.All in all, I do not see any errors of law, procedural unfairness or irrationality in the TCAB Decision, despite rigorous examination and anxious scrutiny.  The Applicant’s intended challenge to the TCAB Decision is not reasonably arguable, and accordingly the application for leave to apply for judicial review is dismissed. 

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