SAHU BHAGYABAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1859/2025

[2026] HKCFI 597

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1859 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.  There shall be no extension of time granted to the applicant to file the Leave Application out of time.

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 20 August 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 24 October 2024 (“Board’s Decision”) dismissing the applicant’s appeal against a decision of the Director of Immigration (“Director”) dated 13 August 2024 rejecting the applicant’s non-refoulement claim based on all applicable grounds[1]. The Board’s Decision is set out in the following hyperlink: -

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2025/HCAL001859_2025_files/the_Board's_Decision.pdf

2.  The basis of the applicant’s claim was that, if refouled to India, he would be harmed or killed by two Muslim butchers due to a religious dispute. 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.

3.  On 16 September 2025, the applicant filed an affirmation applying for the withdrawal of the Leave Application. He affirmed that he wanted to go back to his home country as his problem had already been resolved and that life was safe. In the circumstances, this court will dispose of the Leave Application on paper.

Discussion

4.  The Leave Application operates as a ‘filtering’ process and there is no requirement or expectation to give elaborate reasons for my decision.[2] It is sufficient to state my observations after considering the Board’s Decision and the applicant’s materials adduced.

5.  In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly[3], and further to make full and frank disclosure of all material facts to be verified by an affidavit. In the applicant’s Form 86, the applicant provided a number of grounds in support of the Leave Application. However, most of the grounds were in fact concerned with the allegations against the Director. As for the grounds concerning the Board, the applicant generally averred that the Board’s Decision was unreasonable and irrational and that the Board had placed too much reliance on the COI. The supporting affirmation contained no grounds.

6.  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.[4] In the present case, the Board found that many aspects of the applicant’s claim to have been lacking in detail, exaggerated and inconsistent. The Board found that the applicant had failed to establish his enmity with the Muslim butchers or the Muslim community in his area. The Board therefore found that the applicant would not face a real risk of harm if refouled. 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.

7.  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 or otherwise. The grounds contained in the Form 86 were general and did not condescend to particulars. 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[5].

8.  Additionally, the Leave Application was out of time for about 8 months. The applicant had provided no explanation at all for the delay. In the circumstances, having regard to the lack of merits, the court declines to grant an extension of time to the applicant.

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.

Orders

10.  There shall be no extension of time granted to the applicant to file the Leave Application out of time.

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