BOHBANOV VASYL v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 996/2020

[2025] HKCFI 5349

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 996 of 2020

 Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

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

2.   Leave be granted to the Leave Application. The applicant shall within 14 days file and issue an originating summons, which copy together with all the relevant documents shall be served on the Board as respondent and the Director as interested party..

Observations for the Applicant:

Introduction

1.  By a “Notice of application to apply for leave for judicial review” in the 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 19 May 2020 (“Board’s Decision”) dismissing the applicant's appeal against a decision of the Director of Immigration (“Director”) dated 20 December 2019 (“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/HCAL000996_2020_files/the_Board's_Decision.pdf

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000996_2020_files/the_Board's_Decision_Corrigendum.pdf

2.  In the Form 86, the applicant did not name any interested party.  As the Director should have been the interested party, the Form 86 shall be amended accordingly on the court’s own motion.

3.  The basis of the applicant’s claim was that, if refouled to Ukraine, he would be (i) harmed or killed by Mr Ihor Valeryovych Kolomoyskyi (“Mr K”) for his alleged release of the sensitive information about the illegal activities of Mr K and his related organizations; and (ii) arrested by the Ukrainian government for his financial support to his maternal aunt in Donetsk.  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.  Pursuant to the applicant’s request for a hearing of the Leave Application, this court scheduled a hearing on 8 August 2025.  The applicant appeared in person and made submissions.  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.  The applicant’s Form 86 contained no such grounds at all.  In his supporting affirmation, the applicant only alluded to some alleged errors the Director had made in assessing his claim.

7.  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 stated that he wanted to add new documents to prove that the Board was wrong in not considering all the facts and documents he had provided to it.  He said the new document would show that Mr K was in detention in Ukraine after the sanction by the US.  This would therefore prove that there was a risk that Mr K and his men would harm him if refouled to Ukraine. When this court asked the applicant to focus on the public law errors he alleged the Board had made, the applicant asked to be given time to collect his thoughts.  The court therefore briefly adjourned the hearing to give the applicant time.  When the hearing resumed after 10 minutes, the applicant said he was not able to point out any particular mistakes made by the Board.  He only stressed that the Board did not pay attention to the documents he submitted for his claim leading to the Board’s rejection of his appeal.

8.  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 accepted and found that the applicant was of Ukrainian nationality notwithstanding the Board’s reference (Board’s Decision [127]) that the applicant agreed that his nationality was shown in the Israeli passport that his nationality was Israeli.  The Board found that the applicant’s core-assertions to the non-refoulement claim had been fabricated and was wholly unreliable, in particular his claimed profile as an active whistle-blower.  The Board found that the applicant was not a credible or reliable witness. The Board found that the applicant had not been subjected to any ill-treatment in the past by Mr K, let alone having suffered any physical or mental ill-treatment of the requisite requirement.  There was also no evidence that the state or government of the Ukraine was unable to afford state protection to the applicant.  The Board therefore concluded that the applicant would not face any risks of harm if refouled to Ukraine.

9.  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 and observed a high standard of fairness relating to its rejection of the applicant’s account of events and the alleged threats from the Mr K.  I am satisfied that the Board was entitled to conclude that there was no risk of harm after having found that the applicant’s claims were fabricated.  The applicant has not provided any grounds, whether written or oral, to show that the Board has made any errors of law or procedural unfairness or irrationality in the Board’s Decision in relation to these findings.  But for the Board’s finding on the issue of nationality which will be dealt with below, the applicant’s intended challenge to the Board’s Decision will not have been reasonably arguable with realistic prospects of success such that would enable this court to grant leave

The applicant’s nationality status

10.  According to the immigration records set out in the Director’s Decision ([11]), the applicant departed Hong Kong for Zurich on the strength of an Israeli passport on 27 April 2019.  However, the applicant was refused landing in Zurich and returned to Hong Kong.  The applicant insisted that his Israeli passport was genuine.  Both the Director and the Board accepted and found that the applicant was an Ukrainian national on the basis of the applicants Non-refoulment claim form (“NCF”) that he completed.  However, it seems that the applicant was only found to have an Israeli passport but not a Ukrainian passport.  According to the colour copy of the passport the applicant filed with the court, the expiry date of the applicant’s Israeli passport was on 10 March 2020.  In other words, when he was detained by the Immigration Department, his passport had not yet expired.  There was no finding at all that the applicant’s Israeli passport was a fake passport.  The nationality stated on the applicant’s passport was “Israeli”.  Hence, according to the documentary evidence, the applicant’s nationality was “Israeli”.  Apart from the applicant’s own assertion, there was not any documentary proof of the applicant’s alleged Ukrainian nationality.  Without having made any investigation, the Board concluded that the applicant had Ukrainian nationality.

11.  Hence, it is likely that the applicant has Israeli nationality.  It is incumbent on the decision-maker (the Director and the Board in this case) to investigate the applicant’s claim of nationality.  This is because it is also trite that claimants cannot legally be refouled or repatriated to a country whose nationality they do not have.

12.  Hence, a decision-maker needs to establish the true legal position of a claimant’s nationality and consider it: Dian Lestari v Torture Claims Appeal Board [2025] HKCA 39 (Chow JA & Cheng J).  A claimant’s statement as to his/her own nationality is insufficient.  The decision-maker should not make assumption but make a finding on the true legal position of a claimant’s nationality.  Before an actual finding on nationality can be made, the decision-maker is required to investigate with reference to official documents.  Re Novi Azizah, [2021] HKCA 1910 (Kwan VP & Yuen JA) at [27] and Re Liana Risdianti, [2022] HKCA 1058 (G Lam JA & Barnes J) at [26] – [28].

13.  In the Director’s Decision, there is no mention as to whether the applicant’s Israeli passport was genuine or not.  The Director seems to have accepted the applicant’s statement without making any independent verification.  The Director also accepted that the applicant’s Ukrainian nationality by his own assumption without any inquiry.

14.  Similarly, the Board seems to have also taken the same approach by assuming that the applicant only used the Israeli passport for travel purposes.  It erred by making assumptions in stating that “it was implausible that Israel would grant citizenship and provide a passport to someone without the basic qualifications “(Board’s Decision [126] and [127]) without making a finding on nationality with reference to any official materials.  Nor was there any consideration of expert evidence on the nationality laws of Israel or Ukraine. 

15.  In the circumstances, there is no finding on the applicant’s claim of Ukrainian nationality.  Arguably, there is no valid legal basis for the Board’s risk assessments in respect of potential refoulement to Israel.  Thus, it is reasonably arguable that the Board has failed to apply the highest standard of fairness of making a proper investigation as to the applicant’s claim of Ukrainian nationality.

Conclusion

16.  In the premises, and for all the given reasons, I am of the view that the applicant’s Leave Application is reasonably arguable on the ground that the Board has erred in its finding on nationality without making any proper investigation, thus meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

17.  Accordingly, I grant leave to the applicant to apply for judicial review of the Board’s decision, and direct that he shall within 14 days file and issue an originating summons, which copy together with all the relevant documents shall be served on the Board as respondent and the Director as interested party.

Order

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

19.  Leave be granted to the Leave Application.  The applicant shall within 14 days file and issue an originating summons, which copy together with all the relevant documents shall be served on the Board as respondent and the Director as interested party.

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

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