Sarki Diwas v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2630/2025

[2026] HKCFI 5466

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2630 of 2025

BETWEEN

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;

Order by Deputy High Court Judge Levy:

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

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

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 28 November 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 22 September 2025 (“Board’s Decision”) dismissing the applicant's appeal against the Director of Immigration (“Director”) dated 30 July 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/HCAL002630_2025_files/the_Board's_Decision.pdf

2.In the Form 86, the applicant named the Board and the Director as the proposed respondents and interested parties. As the Board should have been the proper putative respondent and the Director the proper putative 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 Nepal, he would be harmed or killed by the brother (who was a local gang member) of the man whom the applicant’s friend killed in a fight and the applicant was also present during the scuffle. He also feared that he could not arrested for attempted murder and that he would not get a fair trial. 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.As the applicant has not requested for a hearing in his Form 86, the court will determine the Leave Application without a hearing: see O.53, r.3 (3) of the Rules of the High Court.

Discussion

5.A leave application operates as a ‘filtering’ process. Hence, there is no requirement or expectation to give elaborate reasons for my decision. It is therefore 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 provided no such grounds. In the supporting affirmation, the applicant averred that the Board was procedurally improper and unfair when it required the applicant to provide response which he was unable to offer any. He also cited a number of authorities in relation to the general principles of judicial review.

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.[3]  In the present case, the Board found that the applicant’s material aspects of his claims were incredible and improbable and rejected his claims. The Board found that the applicant would not face any risk of harm if refouled. Further, even if the Board were to accept the applicant’s account, it found that the past ill-treatment failed to meet the requisite level of severity. 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 grounds raised by the applicant are all general allegations without particulars, and the number of cases he cited are merely submissions on the general principles of law related to non-refoulement claims, without advancing any argument against the Board’s decision as such. They do not constitute any valid grounds of appeal against 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].

Order

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

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

Dated the 6^th day of October 2026

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