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HCAL 1723/2020
[2025] HKCFI 5565
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1723 of 2020
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BETWEEN
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Jai Bhagwan |
Applicant |
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and |
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Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office |
Putative
Respondent |
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and |
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Director of Immigration |
Putative |
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Interested Party |
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) Vincent Lung:
The application for leave to apply for judicial review be dismissed.
Observations for the Applicant:
Introduction
1. By a Form 86 filed on 26 August 2020 (the “Form 86”), the Applicant applied for leave to apply for judicial review against the decision by the Torture Claims Appeal Board (the “TCAB”) dated 20 July 2020, which affirmed the decision of the Director of Immigration (the “DOI”) dated 30 May 2018.
2. The Applicant requested for a hearing of this application and he attended the same. When asked if he had anything to add he confirmed that he had not.
Background
3. The Applicant is a national of India. He seeks non-refoulement protection on the basis that he would be harmed or killed if he were to return, because he had a political and land dispute with one Ramkaran who was powerful and politically well-connected. The Applicant said that Ramkaran had attacked him and threatened to kill him. The Applicant’s personal background and the relevant facts have been fully set out in the TCAB Decision, which can be viewed through a hyperlink[1]. I shall therefore not repeat them.
Discussion
4. The leave application operates as a filtering process and there is no requirement or expectation to give elaborate reasons for my decision: Re Zunariyah [2018] HKCA 14 at [23]. It is sufficient to state my observations after considering the TCAB Decision and the materials adduced by the Applicant.
5. I remind myself that in a judicial review, this court does not provide a further avenue of appeal. Though in non-refoulement cases an enhanced standard in scrutinizing the decision of the TCAB is required given the seriousness of the issue at hand, this court should not usurp the role of the TCAB, which together with the DOI are the primary decision-makers. A finding of fact is exclusively within the realm of the TCAB, and this court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the TCAB: Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(1)]. There must be a reasonably arguable case with a realistic prospect of success before leave for judicial review will be granted: Peter Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.
6. In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly: Ho Loy v Director of Environmental Protection (unreported, HCAL 21/2015, 22 December 2016) at [142], and further to make full and frank disclosure of all material facts to be verified by an affidavit.
7. The Applicant did not point to any error of law, procedural unfairness or irrationality of the TCAB Decision in the Form 86. In his supporting affirmation he merely stated that he was not satisfied with the TCAB Decision.
8. As can be seen from the TCAB Decision, the TCAB took into account the Applicant’s case [9-34] and found that on the basis of the same, applying also the correct legal principles in respect of all four applicable grounds [attachment to the TCAB Decision] and considering Country of Origin information [35, 53], the Applicant’s allegations were insufficient to make out any of the applicable grounds [36-47, 48-53, 54-57]. The TCAB also found certain key aspects of the Applicant’s evidence to be exaggerated and inconsistent [37-38, 42-43, 45]. There was accordingly no factual or evidential basis for the Applicant’s claims [45-47]. These are conclusions that the TCAB was fully entitled to come to.
9. All in all, I do not see any errors of law, procedural unfairness or irrationality in the TCAB Decision, despite rigorous examination and anxious scrutiny. The Applicant’s intended challenge to the TCAB Decision is not reasonably arguable, and accordingly the application for leave to apply for judicial review is dismissed.
Dated the 19th day of November 2025
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(Gladys Lee)
for Registrar, High Court
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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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant
on 19/11/2025
Jai Bhagwan
Applicant’s ref. no:
Nil. |
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors 19/11/2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 11979/18/6/158/IN2388
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 1967/18 (Formerly RBCZ 10501/16)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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