Mia Rashal v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 168/2020

[2025] HKCFI 1502

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 168 of 2020

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:

The Leave Application be dismissed.

Observations for the Applicant:

Introduction

1.By prescribed Form 86 filed on 16 January 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 10 January 2020 (“Board’s Decision”) dismissing the applicant's appeal against a decision of the Director of Immigration (“Director”) dated 30 October 2018 (“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/HCAL000168_2020_files/the_Board's_Decision.pdf

2.The basis of the applicant’s claim is that he would be harmed or killed by the people of the Awami League after the applicant had refused to join their party.  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.As the applicant had requested a hearing of the Leave Application, this court held a hearing on 2 April 2025.  The applicant attended the hearing in person.  After having heard from him, this court informed him that the decision would be reserved, and be sent to his updated address.

Discussion

4.A Leave Application operates as a ‘filtering’ process and there is no requirement or expectation to give elaborate reasons for my decision.[1]  It is therefore sufficient for this court 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[2], and further to make full and frank disclosure of all material facts to be verified by an affidavit.   

6.In his Form 86, the applicant raised several grounds for review, which are broadly that the Board’s Decision was procedurally unfair, unreasonable or irrational.

7.The applicant elaborated in his supporting affirmation that he was not given an opportunity to make oral submissions at the hearing before the Board. He also alleged that the Board relied significantly on outdated and unofficial sources of information.

8.At the hearing, this court asked the applicant whether he had any further grounds he wished to submit in support of the Leave Application.  The applicant stated that he had nothing to say and only wanted to go back to his home country as soon as possible.

9.According to the Board’s Decision, an oral hearing was held on 25 July 2019, at which the applicant gave oral testimony and adopted the contents of his written submissions in the bundle of documents before the Board.  Thus, I am of the view that his allegation of having been deprived of an opportunity to make oral submissions is not valid. 

10.After having considered the applicant’s evidence, the Board assessed that the assaults on the applicant and his resulting injuries did not meet the minimum level of severity in order for there to be a real risk of harm in the event of refoulement.  After having considered sources from Wikipedia as well as the relevant COI, the Board also found that the applicant’s claim did not involve any official of the government and that internal relocation was reasonably viable.

11.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 assaults on the applicant and his resulting injuries did not meet the minimum level of severity.  The Board thus found that there was no real risk of harm.  These are findings of fact, which the court in a judicial review will not interfere with, subject to there being any public law errors.

12.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 in the Decisions of the Director and the Board.  The applicant has not shown any errors of law or procedural unfairness or irrationality in the Board’s Decision as alleged.  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].

13.Since the applicant indicated that he wanted to withdraw the Leave Application, the applicant was therefore asked to confirm his withdrawal under oath.  The applicant affirmed that on 9 February 2023 he had already written a letter to the Director, informing him of his wish to withdraw the proceedings.  He stated that it was not safe for him to go home.

14.In the screenshot that shows the letter to the Director, the applicant stated that he wanted to go home as it was now safe.  He wanted to “cancel” his non-refoulement claim including any appeal in Hong Kong.  He further confirmed that he made the application voluntarily and understood that upon a valid withdrawal of the Leave Application, the Board’s Decision remained binding.

15.Apart from the application to withdraw the Leave Application, there is nothing outstanding in this action. This court will therefore dismiss the application instead of merely granting leave to withdraw (Re Rini Artini [2020] HKCA 709 at §9). In any event, I also consider that the appeal is devoid of merit.

Order

16.The Leave Application be dismissed

Dated the 9^thday of May 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