KUNDRA GOURAV v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 984/2020

[2025] HKCFI 2937

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 984 of 2020

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 issue the judicial review application be dismissed.

Observations for the Applicant:

Introduction

1.  By prescribed Form 86 filed on 25 May 2020, 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 6 May 2020 (“Board’s Decision”) dismissing the applicant's appeal against a decision of the Director of Immigration (“Director”) dated 23 April 2018 (“Director’s Decision”) rejecting the applicant's non-refoulement claim on all applicable grounds.  The Board’s Decision can be viewed at the following hyperlink: -

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000984_2020_files/the_Board's_Decision.pdf

2.  In the Form 86, the applicant named both the Board and the Director as the proposed respondents as well as the interested parties.  As the Board should have been the proper respondent and the Director the interested party, the Form 86 will be amended accordingly.

3.  The basis of the applicant’s claim was that he would be harmed or killed by the workers of the company he worked after he had filed a case against them for suspected damage to the expensive bottle-filling machine that the company just bought from Germany.  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 27 June 2025.  The applicant attended the hearing in person.  After having heard from him, this court informed him that the decision would be reserved, and be sent to his updated address.

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.

7.  In his supporting affirmation for his Form 86, the applicant stated a number of complaints or grounds in support of the Leave Application. Notwithstanding that the affirmation is 10 pages in length, most of the grounds/complaints are either repetitive or unrelated to the Board’s Decision. For brevity, I will only summarize those grounds concern the Board’s Decision as follows.

(1)   It is procedurally unfair that the Board’s Decision was written in English and that it has never been read or translated to him in his first language (at [20] –[28] )

(2)   It is unreasonable and unacceptable. The Adjudicator had failed to take into account all the relevant facts into consideration and he only made on baseless assumptions (at [36-37]).

8.  At the hearing, this court asked the applicant whether he had any further grounds he wished to submit in support of the Leave Application. The applicant stated that he had nothing to say.  However, in view of the matters the applicant stated in his affirmation, I asked the applicant to elaborate on his complaints about the question of the language, and the reason why he had decided to file the intended challenge when he had allegedly that he received no language interpretation to explain the Board’s Decision to him.

9.  The Applicant then told this court that when he went to the Immigration Department to sign on his own recognizance, he was told that he lost his appeal, and that he should file a judicial review. The applicant further stated that he then paid $2,000 to hire a purported lawyer to prepare all the papers for the filing on his behalf. The applicant stated that this “lawyer” told him that by filing the application, his claim could be prolonged and he could therefore stay in Hong Kong longer.  When the court asked the applicant whether the complaints/grounds stated in the affirmation were prepared on his instruction, the applicant said that he was simply asked to sign. After the affirmation was shown to the applicant, the applicant confirmed that apart from being told that by signing on the documents he could stay in Hong Kong longer, he knew nothing about the contents of the entire affirmation.

10.  In light of what the applicant had stated, the court told him that he could not therefore rely on the affirmation to support his Leave Application. I asked him whether he had any grounds that he wished to advance in person. The applicant then said he had nothing to say.

11.  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 applicant’s evidence in relation to the grudge the workers held against him, the Board did not accept the remaining part of his evidence from the time when Binku had allegedly called him not to disclose the names of the workers, to the later alleged arrest and release of the workers through the wielding of the influence from Akali Dal Party related uncle of the worker.  The Board found that the said portion of the evidence consisted of multiple hearsays, and therefore concluded that the applicant’s general credibility was undermined. In view of his findings in relation to the general credibility of the applicant, the Board further found that the applicant’s injuries he allegedly sustained in the attack of the workers did not reach the degree of seriousness required to support a claim for non-refoulement protection.  The Board therefore concluded that the applicant would not face a real risk of harm if refouled. These are findings of fact, which the court in a judicial review will not interfere with, subject to there being any public law errors.

12.  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 in the Board’s Decision. I find the Board was entitled to reject the applicant’s centerpiece of the evidence that formed the basis of his fear.  In view of the Board’s rejection of the centerpiece of the applicant’s evidence, I am satisfied that there is no error of law even though the Board had not discussed state protection and internal relocation.  In view of the matters the applicant stated at the hearing, I should disregard the entirety of the written grounds contained in his supporting affirmation. Thus, the applicant has not advanced any grounds either in writing or at the hearing.  In the circumstances, I find that 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[4].

Orders

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

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

Postscript

15.  After this case was heard,the court also heard another challenge against a Board’s decision in HCAL 985/2020.  Similar to what the applicant had told this court in this case about the hiring of a lawyer who prepared the alleged grounds/complaints in the supporting affirmation without explaining the contents to the applicant, the applicant’s affirmation in that case was also prepared in a very similar circumstance.  It is observed that the contents of the supporting affirmations in both these cases are very similar.

16.  These matters have caused this court concern as to whether the preparations of the legal documents might have been unlawful illegal practices. I will therefore direct my clerk to provide a copy of the decision of this case as well as HCAL985/2020 to the Secretary of Justice for his further inquiry into the matters.

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