YONJAN AMRIT v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2416/2019

[2026] HKCFI 803

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2416 of 2019

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;

The Leave Application 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 21 August 2019, 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 9 August 2019 (“Board’s Decision”) dismissing the applicant's appeal against a decision of the Director of Immigration (“Director”) dated 28 May 2018 (“Director’s Decision”) rejecting the applicant's non-refoulement claim on all applicable grounds[1]. The Board’s Decision can be viewed at the following hyperlink: -

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL002416_2019_files/the_Board's_Decision.pdf

2.  The basis of the applicant’s claim was that, if refouled to Nepal, he would be harmed or killed by his neighbours after the applicant set fire to the overgrowth that spread to the grounds of their houses. 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.

3.  At the applicant’s request for a hearing of the Leave Application, this court scheduled a hearing on 17 December 2024. The applicant was absent from the hearing. Since the notice of hearing was returned by post undelivered, this court refixed the hearing to enable the court to inquire from the Director the applicant’s updated address. At the adjourned hearing on 27 January 2026, 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.

The 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. The applicant’s Form 86 provided no such grounds. In the supporting affirmation, the applicant stated that there was a procedural error; that he could not read English and that the time for the preparation of the appeal was very short.

6.  At the hearing, this court asked the applicant whether he had any grounds he wished to submit in support of the Leave Application. The applicant said he had nothing to say. The applicant informed the court that he wished to withdraw the Leave Application as his life was no longer in danger at home. He confirmed the same under oath and further affirmed that he made the withdrawal application out of his free will and that he understood the consequences of the withdrawal.

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.[4]  In the present case, the Board had considerable reservations about the credibility of the applicant’s claim despite having accepted that the applicant might have some fear of returning to his village. The Board found that the applicant would not face any risk of harm if refouled. It further found that both state protection and internal relocation were 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.  Having rigorously examined the Board’s Decision with anxious scrutiny, this court is satisfied that the Board correctly applied the law and the key legal principles; correctly identified the issues, and observed a very high standard of fairness. I am satisfied that there were no errors of law or procedural unfairness in the Board’s Decision. The applicant’s written grounds were only bare assertions. I am not satisfied that the Leave Application is reasonably arguable with realistic prospects of success such that would enable this court to grant leave: see Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

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 Leave Application 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