SUBBA RODA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2671/2025

[2026] HKCFI 3454

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2671 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 for the applicant to file the application for leave to apply for judicial review out of time.

2.  The applicant’s application for leave to apply for judicial review be dismissed.

Introduction

1.  By a “Notice of application for leave to apply for judicial review” in the prescribed Form 86 filed on 2 December 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 27 August 2025 (“Board’s Decision”) dismissing the applicant's appeal against a decision of the Director of Immigration (“Director”) dated 18 June 2025 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/2025/HCAL002671_2025_files/the_Board's_Decision.pdf

2.  The basis of the applicant’s claim is that, if refouled to India, she would be harmed or killed by her husband. 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 2 June 2026. The applicant was in detention at Nei Kwu Correction Institution. She had expressed her wish to attend the hearing. Hence, a body order was issued to bring the applicant to court for hearing in person.  

Discussion

4.  A leave application operates as a ‘filtering’ process. Hence, there is no requirement or expectation to give elaborate reasons for my decision.[2] It is therefore 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 Form 86 and the supporting affirmation provided no such ground.

6.  At the hearing, the applicant repeated the abuse by her husband. She further added that her relationship with her family has since turned sour and she has lost contact with them. As the court noticed a hand-written letter in the applicant’s native language without any English translation was exhibited to the supporting affirmation. The court told her that it could not be accepted as evidence as it did not have English translation and asked her if she wanted to tell the court the contents of that letter. She said the letter was about the abuse by her husband and explained that she could not relocate to other areas as a single woman in her home country. There were lots of robberies. Due to her fear of her husband, she fled her home. She now has no money or support. She requested to be allowed to stay in Hong Kong to save her life.

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 found that the applicant was not a credible witness and that her evidence was evasive, and not forthcoming. The Board did not accept her account of events. Even if the Board were to assume that her relationship with her husband had broken down, it found that her Husband did not have any intention to cause her serious harm. The applicant was only able to identify one single incident of ill-treatment by the husband. The Board found that she would not face any risk of harm if refouled. The Board further found that internal relocation would be 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.

8.  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. The applicant’s submissions at the hearing and the letter exhibited to the supporting affirmation, according to what the applicant told the court, were not relevant to the intended challenge. The applicant has not shown any errors of law or procedural unfairness or irrationality in the Board’s Decision. I find that 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[5].

Whether to extend time for the late application

9.  Another matter I need to consider is the delay. Pursuant to O 53 r 4(1) of the Rules of the High Court, an application to apply for judicial review shall be made promptly and in any event within 3 months from the date of the Board’s Decision. The Leave Application was late for late for about one week.

10.  Whilst the delay cannot be regarded as lengthy, the applicant shall still be required to provide reason to explain for the delay. The applicant stated that she did not know the procedure. It was only after she was detained at Hei Ling Chau since 16 October 2025, she did find out from the inmates about the procedure.

11.  I do not accept the applicant’s reason for the delay. When she was detained in the present detention facility on 16 October 2025, the time limit to file a leave application had not yet expired. Even if the court was to allow her a reasonable time to settle into a new environment, she failed to satisfy the court that she had acted with promptitude. In any event, ignorance is not a valid reason. Most importantly, since I have found that there is no good prospect of success of the intended challenge, I therefore refuse to exercise my discretion to grant the applicant an extension of the time to file the Leave Application out of time.

Orders

12.  There shall be no extension of time for the applicant to file the application for leave to apply for judicial review out of time.

13.  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