Raj Kumar Limbu v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2263/2020

[2026] HKCFI 48

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2263 of 2020

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

Following:

Order by Deputy High Court Judge Levy:

The applicant’s application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

Introduction

1.By a “Notice of application for leave to apply for judicial review” in the prescribed Form 86 filed on 16 November 2020, the applicant applied for leave to apply for judicial review (“Subsequent Leave Application”).  The intended judicial review was against the decision of the Director dated 27 October 2020 (“Director’s Subsequent Decision”) refusing the applicant's request for making a subsequent claim.

Background

2.Before the Subsequent Leave Application, the applicant in HCAL 679 of 2017 filed a “Notice of application for leave to apply for judicial review” for leave to apply for judicial review (“Leave Application”).  Against the decisions of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) dated 2 December 2016 and 24 August 2017  (“Board’s Decisions”) dismissing the applicant's appeal against the decisions of the Director of Immigration (“Director”) dated 16 February 2015 and 9 January 2017 (“Director’s Decisions”) rejecting the applicant's non-refoulement claim respectively on the grounds of torture risks, the BOR 3 risk and the persecution risk (for the decision dated 16 February 2015) and BOR 2 ( for the decision dated 9 January 2017 ).

3.The applicant’s application for leave to apply for judicial review in HCAL 679 of 2017 was dismissed by a judge.  His appeal to the Court of Appeal was dismissed under CACV 426 of 2018 ([2018] HKCA 927).  His application for leave to appeal against the decision of the Court of Appeal was also dismissed on 12 December 2018.

4.The applicant’s claim was that, if refouled to Nepal, he would be harmed or killed by the members from Limuwan because of his refusal to join them. 

5.Pursuant to the applicant’s request for a hearing of the subsequent Leave Application, this court scheduled a hearing on 16 December 2025.  The applicant appeared in person.

Discussion

6.A leave application operates as a ‘filtering’ process and there is no requirement or expectation to give elaborate reasons for my decision.[1]  It is sufficient to state my observations after considering the Director’s Subsequent Decision and the applicant’s materials adduced.

7.In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly[2], and further to make full and frank disclosure of all material facts to be verified by an affidavit.  The Form 86 and the supporting affirmation did not provide any grounds.

8.At the hearing, the applicant stated that he had nothing to say despite having been specifically reminded that he provided no written grounds at all.

9.As the Courts have repeatedly stated, a finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality.[3]

10.After the dismissal of his application for leave to appeal against the decision of the Court of Appeal of CACV 426 of 2018, the applicant made a request to the Director on 20 July 2020 (“Request”) to request for making a subsequent claim for non-refoulement. 

The statutory provisions on subsequent claims

11.Subsequent non-refoulement claims are regulated by section 37ZO of the Immigration Ordinance (Cap 115), which provides:

"Limitation on subsequent claim

(1)  Except as provided in subsection (2), a person who has previously made a torture claim must not subsequently make another torture claim.

(2)  A person may make a subsequent claim if the person provides sufficient evidence in writing to satisfy an immigration officer that :-

(a)   there has been a significant change of circumstances since the previous claim was finally determined or withdrawn; and

(b)   the change, when taken together with the material previously submitted in support of the previous claim, would give the subsequent claim a realistic prospect of success.

(3)  In deciding whether or not a person may make a subsequent claim under subsection (2), an immigration officer may take into account any finding of credibility or fact made by an immigration officer or the Appeal Board in relation to a torture claim previously made by the person.”

12.In his application for the Request, the applicant was represented by the Duty Lawyer Service.  The lawyer representing the applicant submitted a letter together with the applicant’s updated information.  On 20 October 2020, the applicant attended an interview before an immigration officer with the assistance of a Nepali interpreter.  The Request was based on the applicant’s claims that since mid-2017, while he was in Hong Kong, he joined the Rastriya Janata Party (“RJP”).  The Limubwan Party knew about the applicant’s activities of helping the RJP in Hong Kong and threatened to kill him if he were to return to Nepal.

13.In the present case, the Director, having taken into account the Director’s Decisions and the Board’s Decisions, found that the applicant had adduced no cogent evidence to support the Request.  The Director found that the applicant provided no supporting evidence that Limuwan Party was against the RJP.  Further, according to the applicant’s evidence, he was only a mere member without holding any official position.  Hence, the Director did not accept that the applicant was targeted by the Limuwan. In conclusion, the Director found that the applicant’s claim of the change of circumstances was not substantiated.  The Director found that the Request had no realistic prospect of success, thus refused the Request.

14.Bearing in mind the enhanced standard that should be adopted in scrutinizing the Board’s Decision, this court is satisfied that the Director correctly applied the law and observed a high standard of fairness.  The applicant provided no grounds, whether written or oral, in support of the Subsequent Leave Application.  The applicant has not shown any errors of law or procedural unfairness or irrationality in the Director’s Subsequent Decision.  The applicant’s intended challenge to Director’s Subsequent Decision is not reasonably arguable with realistic prospects of success such that would enable this court to grant leave[4].

Order

15.The applicant’s application for leave to apply for judicial review be dismissed.

Dated the 7^th day of January 2026

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