Jahangir Alam Alias Jahangir v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
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HCAL 421/2020 [2025] HKCFI 2118 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 421 of 2020
Application for Leave to Apply for Judicial Review NOTIFICATION of the Judge’s decision (Ord. 53 r. 3) Following:
Order by Deputy High Court Judge Levy:
Observations for the Applicant: Introduction 1.By prescribed Form 86 filed on 16 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 27 February 2020 (“Board’s Decision”) dismissing the applicant's appeal against a decision of the Director of Immigration (“Director”) dated 26 September 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 3 December 2013. The Board’s Decision can be viewed at the following hyperlink: 2.The basis of the applicant’s claim is that he would be harmed by his paternal uncle Osman Sardar and his sons (i.e. the applicant’s cousins) over a land dispute between the applicant’s father and his uncle. He also fears that the Bangladeshi police would arrest him because Osman filed a false complaint against him with the police. 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 request of the applicant had requested for a hearing of the Leave Application, this court scheduled held a hearing on 13 May 2025. The applicant attended the hearing in person, and informed this court that he had just filed an affirmation before the hearing to apply for the withdrawal of the Leave Application. Discussion 4.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. 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. 6.In his Form 86 and supporting affirmation, the applicant advanced a number of grounds for the intended challenge, broadly asserting that the Board had acted unfairly. However, the applicant did not provide any particulars in support of his grounds. 7.At the hearing, the applicant confirmed that he wanted to withdraw the Leave Application as he wanted to go home. The problems in his country has now been resolved. I also confirmed his understanding that the Board’s Decision shall remain valid upon the court’s dismissal of the Leave Application. 8.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 considered the applicant’s appeal on paper without an oral hearing. The Board found that the applicant’s case was based on a family land dispute that did not involve the Bangladeshi authorities. The Board further found that the applicant did not suffer any physical injury. Thus, the Board concluded that there was no real risk of harm and rejected his appeal. The Board found that there was no evidence that the Bangladeshi police would not protect him. Having made these findings, the Board considered that the issue of internal relocation did not arise. 9.Having rigorously examined the Board’s Decision with anxious scrutiny, this court is satisfied that the Board correctly applied the law and the key legal principles relating to the four grounds mentioned above; correctly identified the issues, and observed a very high standard of fairness. I am satisfied that there were no errors of law or procedural unfairness in the Board’s Decision. In the absence of any specific grounds in support of the Leave Application, I find that it was perfectly open to the Board to come to its conclusion that the applicant failed to discharge his burden of proving the asserted fears and risks. 10.For these reasons, I am not satisfied that the Leave Application is reasonably arguable with realistic prospects of success such that would enable this court to grant leave: see Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676. The Leave Application is accordingly dismissed. Disposition 11.In view of the discussion above, I think it is appropriate, as a matter of practice, to dismiss the applicant’s Leave Application instead of merely granting leave to withdraw the Leave Application (Re Rini Artini [2020] HKCA 709 at §9). Order 12.The Leave Application be dismissed. Dated the 26th day 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 [1] This refers to the risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap.115. [2] Re Zunartyah [2018] HKCA 14 at [23]. [3] Ho Loy & Another v Director of Environmental Protection, HCAL 21/2015, 22 December 2016 at [142]. [4] Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524. | ||||||||||||||||||||||||||||||||||||||||
Cases cited in this judgment