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

HCAL 283/2020

[2025] HKCFI 1967

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 283 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:

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

2.  The Leave Application be dismissed.

Observation for the Applicant:

Introduction

1.By prescribed Form 86 filed on 2 March 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 17 January 2020 (“Board’s Decision”) dismissing the applicant's appeal against a decision of the Director of Immigration (“Director”) dated 13 March 2018 (“Director’s Decision”) rejecting the applicant's non-refoulement claim on all applicable grounds except torture risk[1] which was covered by a prior decision of the Director dated 18 January 2012. The Board’s Decision can be viewed at the following hyperlink: -

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000283_2020_files/the_Board's_Decision.pdf

2.In his Form 86, the applicant named the adjudicator of the Board as the proposed respondent and the Board as the interested party. As the Board should have been the proper respondent, and the Director the proper interested party, the Form 86 will be accordingly amended on the court’s own motion.

3.The basis of the applicant’s claim is that he would be extorted, harmed or killed by his ex-friend and creditor Mohammad Imtiaz. 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 had requested for a hearing of the Leave Application, this court held a hearing on 30 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

5.The Leave Application operates as a ‘filtering’ process and there is no requirement or expectation to give elaborate reasons for my decision.[2] 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[3], and further to make full and frank disclosure of all material facts to be verified by an affidavit.

7.In his Form 86 and supporting affirmation, the applicant did not raise any grounds for judicial review.

8.At the hearing, this court told the applicant that he had not put forward any grounds for the intended challenge and asked him whether he had any grounds he wished to submit in support of the Leave Application. However, the applicant said to me that he still had nothing to say.

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.[4] In the present case, the Board rejected the claim because it found that even on the applicant’s own evidence, he was only injured once, and not seriously. Hence, the Board found that the ill-treatment did not meet the required minimum level of severity. The Board considered that Imtiaz did not intend to seriously harm the applicant. 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.

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 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. 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].

Order

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

12.The Leave Application be dismissed.

Dated the 20^th day May of 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