GURUNG NANDINI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1133/2023

[2026] HKCFI 3028

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1133 of 2023

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 be 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:

Introduction

1.  By a “Notice of application for leave to apply for judicial review” in the prescribed Form 86 filed on 10 July 2023, the applicant applied for leave to apply for judicial review (“Leave Application”).  The intended judicial review was against the decisions of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) dated 23 June 2023 (“Board’s Decision”) dismissing the applicant's appeal against the decisions of the Director of Immigration (“Director”) dated 24 October 2022 rejecting the applicant's non-refoulement claim on all applicable grounds. The Board’s Decision can be viewed at the following hyperlinks: -

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2023/HCAL001133_2023_files/the_Board's_Decision.pdf

2.  In her Form 86, the applicant provided an address as the proposed interested party.  Since the Director should have been the proper putative interested party, the Form 86 shall be amended accordingly.

3.  The applicant’s claim was that, if refouled to India, she would be harmed or killed by her husband who suspected her of having a love affair in Hong Kong.  The 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.  The applicant has requested for an oral hearing.  On 17 March 2026, the applicant filed an affirmation for the withdrawal of the Leave Application as it was safe for her to return home.  On 25 March 2026, the Removal Assessment and Litigation (Removal and Deportation) Section (1) of the Immigration Department separately faxed a letter to the court, informing the court that the applicant would like to withdraw her judicial review application.  Enclosed with the said letter was the applicant’s signed memo in her native language as well as English dated 20 February 2026.  In the memo, the applicant stated that she would like to withdraw the Leave Application.  In the circumstances, this court will dispose of the Leave Application on paper.

Discussion

5.  A leave application operates as a ‘filtering’ process.  Hence, there is no requirement or expectation to give elaborate reasons for my decision.[1] 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[2], and further to make full and frank disclosure of all material facts to be verified by an affidavit.  The applicant’s Form 86 contained no such grounds.  In the supporting affirmation, the applicant averred that the Board’s Decision was unreasonable and irrational.  She stated contended that the Board failed to make sufficient inquiry before reaching its decision, and further that it failed to attach weight to hearsay evidence.

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, although  the Board accepted the Husband had made threats towards the applicant, it however found that there was no reliable evidence that the Husband would want to have anything to do with the applicant after both parties having lost contact for over a period of time.  Hence, the Board found that the applicant would not be subjected to risk of harm if refouled.  It also found that the past ill-treatment failed to meet the requisite level of severity.  It further found that state protection and internal relocation were both 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 grounds the applicant stated in the supporting affirmation are general allegations without particulars.  Hence, 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 or otherwise.  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.  Apart from the application to withdraw the Leave Application referred to above, 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

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

11.  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