ROY NANDANI CHANDRA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 3469/2019

[2025] HKCFI 3320

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 3469 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 application for leave to apply for judicial review 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 22 November 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 17 October 2019 (“Board’s Decision”) dismissing the applicant's appeal against a decision of the Director of Immigration (“Director”) dated 12 July 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/2019/HCAL003469_2019_files/the_Board's_Decision.pdf

2.  In her Form 86, the applicant named the Board and the Director as the proposed respondents and provided an address as the interested party. As the Board should have been the proper respondent and the Director the proper interested party, the Form 86 shall be amended accordingly.

3.  The basis of the applicant’s claim was that she would be harmed or killed by her ex-boyfriend, and his family members as well as their henchmen. 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 16 July 2025, which the applicant attended in person.  After having heard from her, this court informed her that the decision would be reserved, and be sent to her 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 her Form 86 and supporting affirmation, the applicant did not raise any grounds for judicial review.

8.  At the hearing, this court asked the applicant whether she had any grounds she wished to submit in support of the Leave Application.  The applicant said that she had nothing to say. She also stated that she did not want to go back to her country as there were still a lot of problems.

9.  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, after the Board had asked her some clarifying questions, it found that the applicant, despite having been given opportunities to provide full and informed explanation, was unable to provide satisfactory answers to the crucial events of her account. After having taken into account of all of her evidence, the Board found that the applicant’s core assertions to her non-refoulement claim had been fabricated or were wholly unreliable. The Board did not accept that the applicant was a credible or reliable witness.  The Board further found that there was no evidence that the government or state or other authorities in Bangladesh had acquiesced in the alleged ill-treatment of the applicant, which alleged ill-treatment was also found to have not reached the high-threshold required. Thus, the Board found that there was no real risk of harm.  The Board also found that there was no evidence that the Bangladeshi government was unwilling to provide state protection.  The Board also concluded that internal relocation was reasonably viable. These are findings of fact, which the court in a judicial review will not interfere with, subject to there being any public law errors.

10.  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. I am satisfied that the Board was entitled to reject the core assertions of the applicant’s evidence after having given the applicant the opportunity to elaborate and explain her evidence. The applicant has provided absolutely no grounds at all, whether written or oral, to challenge the Board’s Decision. 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

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

12.  The 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