Tiwari Ganesh v Torture Claims Appeal Board /

HCAL 962/2022

[2026] HKCFI 3971

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 962 of 2022

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;

Order by Deputy High Court Judge Levy:  

1.  The Form 86 be amended on the court’s own motion.

2.  There shall be no extension of time for the applicant to file the application for leave to apply for judicial review out of time.

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

Introduction

1.By a “Notice of application for leave to apply for judicial review” in the prescribed Form 86 filed on 19 September 2022, the applicant applied for leave to apply for judicial review (“Leave Application”). The intended judicial review was against the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) dated 23 September 2021 (“Board’s Decision”) dismissing the applicant's appeal against a decision of the Director of Immigration (“Director”) dated 30 September 2019 rejecting the applicant's non-refoulement claim on all applicable grounds[1] . The Board’s Decision can be viewed at the following hyperlink: -

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2022/HCAL000962_2022_files/the_Board's_Decision.pdf

2.In the Form 86, the applicant named the Board as well the Director as the proposed respondents, and also named the Board as the proposed interested party. As the Board should have been the proper putative respondent and the Director the proper putative interested party, the Form 86 shall be amended accordingly on the court’s own motion.

3.The basis of the applicant’s claim was that, if refouled to Nepal, he would be harmed or killed by (i) the people from the Biplab faction of the Maoist party for which he had helped train a number of cadres for the use of firearms; and (ii) the Nepal government for his previous assistance provided to the Maoist party. The Board’s reasoning and findings were set out in detail in the Board’s Decision and it is not necessary for me to repeat them. Unless otherwise specified, I shall also adopt the Board’s abbreviations and descriptions stated in the Board’s Decision.

4.At the applicant’s request for a hearing of the Leave Application, this court scheduled a hearing on 19 May 2026. The applicant attended the hearing in person and submitted that his life was still in danger.

Discussion

5.A leave application operates as a ‘filtering’ process. Hence, there is no requirement or expectation to give elaborate reasons for my decision.[2] It is therefore sufficient to state my observations after considering the Board’s Decision and the applicant’s materials adduced.

6.In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly[3], and further to make full and frank disclosure of all material facts to be verified by an affidavit. The Form 86 provided no such grounds. In the supporting affirmation, the applicant only stated that the Board’s Decision was unfair and unreasonable.

7.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.[4] At the hearing before the Board, the applicant was legally represented by a duty lawyer and the Director by a government counsel. After having received lengthy evidence from the applicant and the submissions from both parties, the Board accepted that the applicant had essentially provided truthful and accurate account of past events despite some credibility concerns. After having regard to the updated COI that showed that there had been significant political developments in Nepal, particularly in March 2021, a peace agreement had been signed between the government and the Chand Group (the Biplab faction of the Maoist party), the Board found any risks of serious or significant harm from the Chand Group would likely be very remote. Regarding the applicant’s claimed risk from the Nepalese government, the Board was not satisfied that the applicant would face any risk of being harmed by the Nepalese authorities in connection with his previous involvement with the Chand Group as the applicant had conceded at the hearing that he had not actually been threated by the government. Further the applicant had already left the Chand Group before it was outlawed in March 2019. These are findings of fact, which the court in a judicial review will not interfere with, subject to there being any public law errors.

8.Bearing in mind the enhanced standard that should be adopted in scrutinizing the Board’s Decision, this court is satisfied that the Board correctly applied the law relating to all the grounds and observed a high standard of fairness. The applicant’s averments in the supporting affirmation alleging unfairness and unreasonableness were general and did not condescend to particulars. The applicant has not shown any errors of law or procedural unfairness or irrationality in the Board’s Decision. The applicant’s intended challenge to the Board’s Decision is not reasonably arguable with realistic prospects of success such that would enable this court to grant leave[5].

Whether to extend time for the late application

9.Another matter I need to consider is the delay. Pursuant to O 53 r 4(1) of the Rules of the High Court, an application to apply for judicial review shall be made promptly and in any event within 3 months from the date of the Board’s Decision. The applicant was late for almost 9 months, which delay is significant. Good reason for the delay shall be required.

10.At the hearing, the applicant explained that when the Board’s Decision was delivered, he was serving a prison sentence for a convicted office. Although his lawyer had sent him a copy of the Board’s Decision while he was in prison, the applicant said that he heard that he would soon be transferred to the Immigration’s detention facility. Hence, after he was sent there on 8 August 2022, he then asked the welfare officer for help.

11.I do not find the applicant’s explanation for the delay reasonable. He had failed to explain why he did not take prompt action to pursue the intended challenge while he was serving prison sentence. Having regard to the lack of merits of his intended challenge, and the substantial delay, I refuse to exercise my discretion to grant the applicant an extension of the time to file the Leave Application out of time.

Orders

12.The Form 86 be amended on the court’s own motion.

13.There shall be no extension of time for the applicant to file the application for leave to apply for judicial review out of time.

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

Dated the 23^rd day of July 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