Magar Anil v. Torture Claims Appeal Board

HCAL 2018/2020

[2025] HKCFI 6357

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2018 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 / the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review be refused.

Observations for the Applicant:

1.The Applicant is a 44-year-old national of Nepal who entered Hong Kong illegally on 31 October 2009 and was arrested by police on the same day. After he was referred to the Immigration Department for investigation, he raised a torture claim later taken as a non-refoulement claim for protection on the basis that if he returned to Nepal he would be harmed or killed by members of the political party Madhesi Jana Adhikar Forum Nepal (“MJFN”) in revenge for being involved in a fight with some of their members in his home district that led to the death of one of them. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Itahari Town, District Suhsari, Zone Kosi, Nepal. After leaving school he worked as a shop keeper and in the factory in his home district to make his living.

3.One day in August 2009 while the Applicant and his friends were drinking in a bar, they got into a fight with another group of men during which one of the men was struck in the head with a rod and collapsed on the floor unconscious, and that the Applicant and his friends then fled from the scene and ran home.

4.Later when he heard that the man had died from his head injury, and that he was a member of MJFN that the other members were looking for him and his friends to take revenge, the Applicant became fearful for his life and on 26 October 2009 departed Nepal for China, and from there he later sneaked into Hong Kong, and upon his arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 24 October 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.By a Notice of Decision dated 20 April 2015 the Director of Immigration (“Director”) rejected the Applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115 (“Torture Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“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”).

6.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 he will be harmed or killed by the MJFN members upon his return to Nepal due to the absence of any past ill-treatment from them, that there is no evidence of that the MJFN were involved at all or that the man who died in the fight was a member of MJFN or that they were looking for the Applicant in revenge other than some uncorroborated hearsays and the Applicant’s own speculations, that in any event in the absence of any official involvement that state or police protection would be available to the Applicant if resorted to, 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 30 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 his home district in large cities such as Kathmandu where it would be difficult if not impossible for anyone to locate him.

7.The Applicant then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 20 July 2016 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 19 April 2017 his appeal was dismissed by the Board which also confirmed the Director’s decision.

8.In its decision[1] the Board accepted the Applicant’s claim of being involved in a fight during a drinking incident but found no reliable evidence of any threats from the MJFN people against the Applicant or that the victim was one of their members other than some uncorroborated hearsays and the Applicant’s own speculations, and that in any event in the absence of any official involvement that state or police protection would be available to the Applicant upon his return to Nepal to negate any such risk that his claim for non-refoulement protection failed on all applicable grounds.

9.Meanwhile on 16 May 2017 the Director on his own initiative invited the Applicant to submit any additional facts which he may consider relevant to his non‑refoulement claim on all applicable grounds for non-refoulement protection including any other absolute and non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2”), and in the absence of any reply or response from him, the Director by a Notice of Further Decision dated 1 June 2017 also rejected the Applicant’s BOR 2 Claim upon finding that he had failed to establish a personal and real risk of his absolute and non-derogable rights under the HKBOR including right of life under BOR 2 being violated upon his return to Nepal.

10.On 26 June 2017 the Applicant again lodged an appeal to the Board against this Further Decision of the Director, and for which he attended another oral hearing on 27 December 2019 before the Board during which he again gave oral evidence and answered questions raised of his BOR 2 Claim by the same Adjudicator for the Board, and by a Decision[2] dated 7 September 2020 the Board again dismissed his appeal upon finding no evidence from the Applicant that he would face any real risk under the BOR 2 ground upon his return to Nepal, and that it also confirmed the Director’s Further Decision.

11.On 7 October 2020 the Applicant filed his Form 86 for leave to apply for judicial review of this second decision of the Board, but no ground for seeking relief was given in his Form or his supporting affirmation of the same date in which he just repeated his claim as before but without putting forth any proper ground for his intended challenge, nor did he request any oral hearing for his application. As such, and in the absence of any error of law or irrationality or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge of the Board’s decision.

12.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.

13.In the Applicant’s case, the Board rejected his claim for the thorough and detailed analysis and reasoning set out in both of its decisions with the benefit of hearing him twice in his oral evidence and his answers to questions raised of his claim under all the applicable grounds, and in the absence of any error of law or procedural unfairness in either of his processes before the Board or in its decisions being clearly and properly identified by the Applicant, and that on the basis of even his own case that his claim simply did not engage the BOR 2 ground, I do not find any reasonably arguable basis to challenge the findings of the Board.

14.Furthermore, the fact is that it has also been established by the Director in his earlier decision that the risk of harm in the Applicant’s claim even if real is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Nepal, a decision also agreed and confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

15.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 under all applicable grounds.

16.In the premises, as I am for the given reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I therefore refuse to grant leave and accordingly dismiss his leave application.

Dated the 22^nd day of December 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