Mondal Manik v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
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HCAL 3706/2019 [2025] HKCFI 1262 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 3706 of 2019
Application for Leave to Apply for Judicial Review Following:
Order by Deputy High Court Judge (Non-refoulement Claims) Philips Wong
Observations for the Applicant: Introduction 1.By Form 86 filed on 12 December 2019 (the “Form”), the Applicant applied for leave to apply for judicial review (the “Leave Application”) against the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (the “Board”) dated 3 December 2019 (the “Board’s Decision”). 2.In the Form, apart from the Board’s Decision, the Applicant also mentioned a decision “made on unknown date but notice on of (sic) 8 November 2018”. It is not clear which decision the Applicant was referring to. In the supporting Affirmation, the Applicant sought leave to apply for judicial review against both the Board’s Decision and the decision of the Director of Immigration (the “Director”). 3.The Director’s decision had been superseded by the Board’s Decision. The Director’s decision is not a decision susceptible to judicial review once an appeal to the Board had been pursued (see Re: Moshsin Ali [2018] HKCA 549, at §§31-45). Accordingly, in so far as the Applicant seeks leave to apply for judicial review in relation to the Director’s decision, the application fails in limine. 4.The Applicant had requested an oral hearing for the application. The hearing was held on 6 March 2025 and the Applicant attended in person. Background 5.The Applicant’s background, the basis of his claim and the arguments he advanced had been set out in details in the Board’s Decision and it is not necessary for me to repeat the same here. The hyperlink to the Board’s Decision is included below[1] for reference. Discussion 6.The applicable legal principles relating to application of this sort are well established. The role of the Court in a judicial review is not to provide a further avenue of appeal. The primary decision makers are the Director and the Board. Though in non‑refoulement cases, the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. Assessment of evidence, country of origin information (COI) materials, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The Court will not intervene by way of judicial review unless there are errors of law, procedural unfairness or irrationality in the decision of the Board. (See Nupur Mst v Director of Immigration [2018] HKCA 524, at §14) 7.In the Form, the Applicant has not provided any grounds in support of the Leave Application. In the supporting Affirmation, the Applicant simply attached the Board’s Decision and the hearing bundle before the Board. The Applicant has failed to provide any basis for the Leave Application. 8.At the hearing held on 6 March 2025, the Applicant indicated that he now wants to go back to his country. 9.I have considered the Board’s Decision in details. I do not find any error of law, procedural unfairness or irrationality. Neither has the Applicant been able to demonstrate any of the same. There is nothing to indicate that the Board had failed to take into account any relevant matters. The Board’s Decision was comprehensive with adequate reasons provided. It satisfies the enhanced Wednesbury test and is not Wednesbury unreasonable or irrational. I am not satisfied that the Applicant’s intended challenge of the Board’s Decision is reasonably arguable with any realistic prospects of success. Accordingly, I refuse to grant leave for judicial review. 10.Leave application of this sort is meant to be a filtering process and I am not expected to give elaborated reasons for my decision (see Re Zunariyah [2018] HKCA 14, at §23). Suffice for me to state that in reaching the decision, I have considered all the relevant documents before me. Conclusion 11.In the premises, in light of my decision above, and given the Applicant’s indication that he now wants to go back to his country, I make an order that the Leave Application be dismissed (see Manik MD Mahamudun Nabi [2022] HKCA 471, at §19). Dated the 11th day of April 2025.
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 [1]https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003706_2019_files/the_Board's_Decision.pdf |
Cases cited in this judgment