KUMAR AJAY v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 3818/2019

[2025] HKCFI 1385

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3818 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;

1.  The Form 86 is amended on the court’s own motion.

2.  The Leave Application be dismissed.

Observations for the Applicant:

Background

1.  By prescribed Form 86 filed on 23 December 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 20 December 2019 (“Board’s Decision”) dismissing the applicant’s appeal against a decision of the Director of Immigration (“Director”) dated 9 March 2018 rejecting the applicant’s non-refoulement claim based on all applicable grounds. The Board’s Decision is set out in the following hyperlink: -

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003818_2019_files/the_Board's_Decision.pdf

2.  The applicant’s claim is based on a fear that if refouled, he would be harmed or killed by his uncle and his two sons over a piece of land the applicant inherited from his grandmother. 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.  In the Form 86, the applicant named the Board and the Director as the proposed respondent(s) and stated the address of the Immigration Department as the proposed interested party. As the Board should have been the proper proposed respondent and the Director the proper proposed interested party, the Form 86 will be amended accordingly on the court’s own motion.

4.  As the applicant has not requested for an oral hearing, this court will dispose of the Leave Application on paper.

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. 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. However, the applicant has identified no such grounds, and merely stated in his supporting affirmation that he would like to reject the decision made by the Director and that “they disregard the danger and threats I face in my country”.

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.[3] In the present case, the Board’s findings that that applicant’s evidence was not credible, and of the reasonable availability of state protection and internal relocation, 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. 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].

Orders

8.  The Form 86 is amended on the court’s own motion.

9.  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