Kunwar Prem Bahadur v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
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HCAL 208/2022 [2026] HKCFI 2234 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 208 of 2022
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 (Non-refoulement Claims) Connie Lee:
Observations for the Applicant: Introduction 1.By Form 86 filed on 14 April 2022, the Applicant seeks leave to apply for judicial review (the “Leave Application”) of the decision of the Torture Claims Appeal Board/Non‑refoulement Claims Petition Office (the “Board”) dated 9 January 2020 (the “Board’s Decision”). By that decision, the Board confirmed the decision of the Director of Immigration dated 29 March 2019 (the “Director’s Decision”), which had rejected his non-refoulement claim on all applicable grounds under the Unified Screening Mechanism (USM). 2.The Applicant’s background, the basis of his claim and the arguments he advanced had been set out in detail in the Board’s Decision. It is not necessary for me to repeat the same here. The Board’s Decision is contained in the hyperlink[1] below. 3.The Applicant did not attend the oral hearing. I have therefore considered the Leave Application based on the materials available before me.[2] Discussion 4.The Leave Application was lodged out of time under Order 53 rule 4 of the Rules of High Court, Cap 4A. 5.In considering whether to extend time, the Court shall have regard to (1) the length of delay; (2) the reason for delay; (3) the merits of the intended application; and (4) any prejudice that may be occasioned to the applicant if leave is refused as against the prejudice to the respondent and the public administration if leave is granted and (5) question of general public importance.[3] 6.First, the 2-year delay in question is very substantial. The Applicant has not applied for an extension of time nor provided any explanation for the delay in support of the Leave Application. 7.Second, regarding merits, I am not persuaded that the Applicant’s intended application for judicial review is reasonably arguable with any realistic prospect of success.[4] 8.Judicial review does not operate as a further avenue of appeal. The Leave Application operates as a “filtering” process and there is no requirement or expectation to give elaborate reasons for my decision.[5] In seeking to challenge the Board’s Decision, the Applicant ought to have clearly and precisely identified the grounds relied upon in the Form 86 and in his supporting affirmation. Save for a general assertion that the Board’s Decision is unfair and unreasonable, the Applicant has failed to identify any valid or effective public law grounds.[6] 9.In view of the seriousness of the issues involved, I have reminded myself of the enhanced standard required by law. Despite the Applicant did not advance any valid ground for the intended judicial review, I have scrutinized the Board’s Decision for any errors of law, procedural unfairness or irrationality. 10.The primary decision makers are the Director of Immigration and the Board and the Court should not usurp the role of the Board. Assessment of evidence, country of origin information (COI) materials, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director of the Immigration).[7] 11.The Board was acutely aware of the Applicant’s claim that if he were to return to Nepal, he would be harmed by his girlfriend’s family, which has a close relationship with Maoist, because of his affairs with this girlfriend i.e. Saru. Although the Applicant did not attend the hearing before the Board as he was on the run and an arrest warrant was issued against him, the Board had carefully assessed the material facts and evidence of the Applicant’s claim including the COI materials. The Board identified the significant gaps and inconsistencies with the evidence (see: Paragraph 79 of the Board’s Decision). Based on such gaps and inconsistencies with the evidence, and without the benefit of a hearing for the Applicant to explain the same, the Board was fully entitled to reject the factual basis of the Applicant’s claim entirely. The Board was therefore also entitled to conclude that (1) the Applicant had never been in a relationship with a girl from a different caste; (2) he had fabricated his claims that he or his brother and other family members have been harassed, threatened, abused and beaten by a man called Raj and his associates; and (3) there was not a real risk that he would face any of the proscribed forms of harm should he return to Nepal. 12.There is simply nothing to indicate the Board had failed to take into account any relevant matters. I also do not find any error of law or procedural unfairness or irrationality on the part of the Board in the assessment and rejection of the Applicant’s claim. 13.Finally, I discern no prejudice in refusing to allow the Applicant to proceed with an application that is, in any event, wholly unmeritorious. Conversely, allowing him to do so would disrupt and undermine the proper administration and cause prejudice to the Putative Respondent. For completeness, I also do not accept (if so contended by the Applicant) that the matter raises any question of general public importance requiring determination by the Court. Conclusion 14.I see no good reason to extend time for the Applicant to apply for leave to seek judicial review. I accordingly dismiss the Leave Application.
Dated the 27th day of April 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
[1] https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2022/HCAL000208_2022_files/the_Board's_Decision.pdf [2] Re Abdus Salam [2019] HKCA 1091. [3] H v. Director of Immigration (2020) 23 HKCFAR 248 at [17] to [22] & [36] to [44] citing AW v. Director of Immigration [2016] 2 HKC 393 (CA) at [27] to [28] & [35]. [4] Peter Po Fun Chan v. Winnie Cheung & Anor (2007) 10 HKCFAR 676. [5] Re Zunariyah [2018] HKCA 14 at [23]. [6] Ho Loy & Anor v. Director of Environmental Protection, HCAL 21/2015 (Unrep.) 22.12.2016 at [142] [7] Nupur Mst v. Director of Immigration [2018] HKCA 524 at [14].
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Cases cited in this judgment