Gurung Bikash Kumar v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
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HCAL 889/2023 [2026] HKCFI 5306 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 889 of 2023 BETWEEN
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 K.W. Lung:
Observations for the Applicant: THE APPLICATION 1.The applicant applies for leave to apply for judicial review of the Decision dated 24 May 2023 of the Torture Claims Appeal Board (“the Board’s Decision”), dismissing the appeal against the Director’s Decision as described below. 2.The applicant appeared before the Court on 2 September 2026. 3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party. The applicant 4.The applicant is a national of Nepal. He is an illegal immigrant. He lodged a non-refoulement claim with the Director of Immigration (“the Director”) on the basis that, if refouled, he will be harmed or killed by Netra Bikram Chand and other members of the Communist Party of Nepal (Maoist) (“his enemies”) as he was forced to join the Party. 5.Details of his claim are set out in the Board’s Decision. See hyperlink. The Director’s Decision 6.The Director considered the applicant’s claim in relation to the following risks:
7.By way of Notice of Decision dated 31 May 2022 (“the Director’s Decision”), the Director dismissed the applicant’s claim on all applicable risks because it was unsubstantiated. The Board’s Decision 8.The applicant appealed the Director’s Decision to the Board. On 10 May 2023, the Board conducted an oral hearing for his appeal. He had given oral evidence and answered the Board’s questions. 9.Having considered the evidence, the Board found that his story was acceptable [36]; that there was no evidence that his enemies had the intention to harm or kill him [37]; that there is no substantial ground for believing that the applicant will have a real chance of facing any genuine and personal risk from his enemies upon returning to Nepal [38]; that state protection will be available if he returns to Nepal [41]; and internal relocation is a viable option [44]. 10.For the reasons above, the Board dismissed his appeal and affirmed the Director’s Decision. Application for leave to apply for judicial review of the Board’s Decision 11.The applicant has filed Form 86 dated 7 June 2023 for leave to apply for judicial review of the Board’s Decision. 12.To challenge the Board’s Decision, the applicant filed an affirmation in which he stated that he was not legally assisted in preparing the case and the Board’s Decision was not translated to him and he did not have translation service and the Board’s Decision was not supported by the country-of-origin information. Before the Court, the applicant handed in his statements in which he says the government of Nepal is unstable and he will face danger if he returns to Nepal now. He would rather stay in Hong Kong for 2-3 years until the situation in Nepal becomes better, then he will return. He further submits that the Board did not consider his claim of death threat in 2014; that its finding of state protection is a general consideration without considering his personal circumstances, the same applies to the issue of internal relocation. The Board was unreasonable to say that if accepted his story on the one hand, on the other hand, rejected his claim of threat, saying that it is his speculation. DISCUSSION 13.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1). 14.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, upon being asked whether he considered that the Board’s Decision was wrong, he said that he was unable to say that the Board was wrong. However, he asked the Court to review the Board’s Decision. 15.Although the applicant said that he was unable to identify what is wrong with the Board’s Decision, this Court still has a duty to consider those issues he has raised, in particular, the Board’s finding that though his story was accepted, nevertheless, found that his alleged threats by his enemy was only his speculation. 16.On the issues of legal representation and translation service, the Court of Appeal has ruled that he is not entitled to free legal assistance throughout the proceedings and this cannot be a valid ground to challenge the Board’s Decision[1]. He is also not entitled to translation service all the time[2]. Judging from his statements submitted to the Court, he is able to understand English generally. He had signed on the statements, signifying he agreed to the contents, even if they were drafted by his friend. 17.His wish to stay in Hong Kong because of the unstable political situations in Nepal is not relevant to his claim. That the Board did not rely on the COI is his bare assertion without any evidence in support. State protection and internal relocation are issues that the Board has to seek COI for reference. By putting the applicant’s situations into the COI, the Board will come to its conclusion whether his situations will be covered by state protection and internal relocation. There is nothing amiss in this approach. 18.As to his query why the Board believed his evidence on the one hand, yet disbelieved his allegation of threats from his enemies, extorting money from him, the Board had pointed out in paragraph 37 that the applicant’s allegations were based upon hearsay information without objective evidence in support. The Board was entitled to give little or even no weight on this sort of evidence in its assessment of the case. This is squarely within the Board’s province. See paragraph 13 above. Looking at the matter from this perspective, the applicant has no reasonable ground to complain against the Board. 19.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:
20.The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision. DISPOSITION 21.I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application. Dated the 23rd day of September 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] The Court of Appeal in Re Ahmed Syed Rafiq [2018] HKCA 178, Hon Lam & Chu JA, 26 March 2018, held:
[2] The Court of Appeal in Re: Sharma Poonam [2019] HKCA 804, held:
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