KAMAL KUMAR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 534/2025

[2025] HKCFI 3125

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 534 of 2025

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;

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

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

Observations for the Applicant:

Background

1.  By a “Notice of application for leave to apply for judicial review” in the prescribed Form 86 filed on 28 February 2025, 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 20 February 2025 (“Board’s Decision”) dismissing the applicant’s appeal against a decision of the Director of Immigration (“Director”) dated 6 November 2024 rejecting the applicant’s non-refoulement claim based on all applicable grounds. The Board’s Decision is set out in the following hyperlink: -

             https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2025/HCAL000534_2025_files/the_Board's_Decision.pdf

2.  In his Form 86, the applicant named a “Miss Michelle Ng”, a member of the Board as proposed respondent and the Board as the interested party. As the Board should have been the proper respondent and the Director the proper interested party, the Form 86 will be amended according on the court’s own motion.

3.  The basis of the applicant’s claim was that if refouled, he would be harmed or killed by his debtor for a 100,000 INR the applicant had lent to him. 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.  On 9 May 2025, the applicant filed an affirmation to apply for the withdrawal of the Leave Application. In the circumstances, this court will dispose of the Leave Application on paper.

Discussion

5.  The 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 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^[2], and further to make full and frank disclosure of all material facts to be verified by an affidavit.  However, the applicant has identified no such grounds either in his Form 86 or his supporting affirmation.

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.^[3] In the present case, whilst the Board accepted that the applicant had lent money to his debtor, it however found that the applicant had altered his evidence at the hearing about a significant new evidence that the debtor would beat him if he saw him again. The Board found that the alteration of evidence as well as his refusal to meaningfully answer questions the Board raised had undermined the overall credibility of his account. The Board concluded that the applicant would not face a real risk of serious harm if he were to return to his home country. The Board also found that state protection would be reasonably available. 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 decision of the Board, this court is satisfied that the Board correctly applied the law relating to all the grounds and observed a very high standard of fairness.  The applicant has not shown any errors of law or procedural unfairness or irrationality in the Board’s Decision, nor were such grounds identified in the Form 86. The applicant’s intended challenge to the Board’s Decision is not reasonably arguable with any realistic prospects of success such that would enable this court to grant leave^[4].

Withdrawal application

9.  In his affirmation seeking for withdrawal, the applicant stated that he wanted to go home as all his problems had been solved in India.

10.  Apart from the application to withdraw the Leave Application, there is nothing outstanding in this action.  In the circumstances, I make an order to dismiss the Leave Application, and hereby order the dismissal of the Leave Application: see Re Manik Md Mahamudun Nabi [2022] HKCA 471; Ngo Xuan Tuyen v Torture Claims Appeal Board [2024] HKCA 1140.

Order

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

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

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