Khatry Tekendra v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office

HCAL 2667/2019

[2026] HKCFI 326

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2667 of 2019

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 To:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.This is the Applicant’s application by Form 86 filed on 12 September 2019 for leave to apply for judicial review (the “leave application”) of a decision of the Torture Claims Appeal Board / Non-refoulement Petitions Office (the “Board”) dated 15 August 2019 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision refusing his application for non‑refoulement protection (the “Notice”). 

2.The Applicant had requested an oral hearing.  A hearing was scheduled and notice of hearing were sent to him by post on 18 November 2025 to his address as stated in his Form 86 and to his updated address as discovered from the Immigration Department on 20 June 2025.  Two attempts had been made by a court staff to contact him on the afternoon of 9 December 2025 and on the morning of the date of hearing, ie 10 December 2025, to remind him of the hearing; but the calls were not answered.  There is nothing to suggest that he had not received either of the notice of hearing.  The Court was satisfied that the notice of hearing had been duly served on the Applicant and the Court had tried its best endeavour to bring the hearing to his notice.  However, he did not appear at the hearing.  Having considered the nature of the application and issues raised, the Decision, the papers, the applicable legal principles and all the circumstances, the Court considered that the leave application may be justly determined on paper without an oral hearing.  Hence, the Court proceeded to make a determination.

The Applicant’s claim and the Board’s Decision

3.The Applicant is a national of the Republic of Nepal.  His personal background, the factual background leading to the present application, the basis of his claim and the arguments he advanced, the finding of the Board and the reasons for its Decision are set out in details in the Board’s Decision.  These will not be repeated here.  The hyperlink to the Board’s Decision is included below[1] for reference.  In gist, he claims he will be harmed or killed, if returned to Nepal, by Hem Raj’s family members in revenge for Hem Raj’s murder by the Applicant’s father. 

4.The Board found the Applicant incredible and did not accept the material aspects of his case.  It dismissed his claim essentially because it was unable to make a decision in his favour on the basis of the unreliable information provided by him.  However, the Board went further and assessed his claim on the basis of the case as he asserted.  It found even on that basis, the Applicant is not entitled to protection under any of the applicable grounds under the Unified Screening Mechanism (the “USM”).  It also found on the basis of the country of origin information that reasonable state protection would be available on the Applicant’s return to Nepal and that he could also avoid the harm and risk, if any, by internal relocation and it would not be unduly harsh to expect him to so relocate.  For all these reasons, it dismissed his appeal.

The legal principles applicable to judicial review

5.The function of the court in judicial review is not to re-assess the non‑refoulement claims afresh.  The primary decision-makers in a claim for non‑refoulement are the Director and the Board.  They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non‑refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  In an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality:  see Nupur Mst v Director of Immigration[2].

Grounds for judicial review

6.The Applicant did not advance any grounds for judicial review in his Form 86.  In his supporting affirmation, he annexed a copy of the Decision and asserted that all he said in his statement are true.  Seeming, he disagreed with the Board’s Decision.  That is in effect a challenge of the Board’s finding of fact, which is impermissible in an application for judicial review.  In the absence of any specific grounds of application, the court in a judicial review could only focus on errors of law, procedural unfairness or irrationality in the Board’s Decision sought to be reviewed.

Overall scrutiny

7.Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles applicable to non-refoulement protection under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness.  The Board analysed the evidence carefully and tested it against common sense, inherent probability and the country of origin information.  It was not satisfied that he was a credible witness and found his evidence unreliable.  It found he had failed to prove the factual basis to support his claim for protection under any of the applicable grounds.  Nevertheless, it also assessed his claim on the basis of the case as he asserted.  It found even on the factual case as he presented, he is not entitled to protection.  It also found adequate state protection available and that he could avoid the risk of harm by internal relocation. 

8.These are mixed findings of fact and of the law.  Insofar as they are finding of the law, they are absolutely correct.  Insofar as they are findings of fact, they are exclusively within the realm of the Board, which the Court on a judicial review will not interfere save when such finding was made as result of error of law or procedural unfairness or that the Decision is irrational.  The Court could detect no error of law or procedural unfairness in the Decision.  The Decision does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  Basically, the Applicant failed to discharge his burden of proving his fears and risks.  The Decision is utterly without fault.  The proposed judicial review has no realistic prospect of success. 

Conclusion

9.For the above reasons, the Applicant’s leave application is refused.

Dated the 15^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