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

HCAL 471/2020

[2025] HKCFI 2210

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 471 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.

Observations for the Applicant:

Introduction

1.By prescribed Form 86 filed on 20 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 4 March 2020 (“Board’s Decision”) dismissing the applicant's appeal against a decision of the Director of Immigration (“Director”) dated 1 February 2019 (“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 7 August 2012.  The Board’s Decision can be viewed at the following hyperlink: -

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000471_2020_files/the_Board's_Decision.pdf

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

3.The basis of the applicant’s claim is that he would be harmed or killed by his creditor due to his inability to repay a loan.  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.At the applicant’s request for a hearing of the Leave Application, this court scheduled a hearing on 21 May 2025.  The applicant attended the hearing in person, and informed this court that he had nothing to say as he had submitted an application to the Director to withdraw his claim. He said that he wished to withdraw the Leave Application as his problem at home has been resolved. 

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, the applicant did not raise any grounds for judicial review.  In his supporting affirmation, he merely reiterated the basis of his claim without providing any particulars.

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]

9.In the present case, the Board rejected the claim because it found that the applicant’s evidence was not credible, due to significant inconsistencies in his evidence.  The Board drew the applicant’s attention to the inconsistencies. However, he was unable to provide a satisfactory explanation. As a result, the Board rejected his core allegations, i.e. that he borrowed money from his creditor and that the creditor threatened to kill him.  Thus the Board found that there was no real risk of harm from his creditor.  In addition, despite the applicant’s claim that there were dangers to his life in Pakistan due to “extortion, terrorism, political issues, religious problems” and “many more difficulties”, the Board was not satisfied that there was a real risk of harm.[5] In addition, the Board was not satisfied that the Pakistani police would withhold protection. 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.  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[6].

Application to Withdraw

11.In view of the applicant’s indication of his decision to withdraw the Leave Application, I asked the applicant to confirm his application under oath.  The applicant affirmed that the problem in his country has been resolved and he wanted to go home. He also confirmed that he was making the withdrawal application voluntarily and understood the consequences of his withdrawal- that the Board’s Decision would remain binding.

12.Apart from the application to withdraw the Leave Application, there is nothing outstanding in this action.  In the circumstances, I make an order to dismiss the Leave Application, and hereby order the dismissal of the Leave Application: see Re Manik Md Mahamudun Nabi [2022] HKCA 471, Ngo Xuan Tuyen v Torture Claims Appeal Board [2024] HKCA 1140.

Orders

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

14.The Leave Application be dismissed.

Dated the 4^th day of June 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