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

HCAL 267/2020

[2025] HKCFI 2294

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 267 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 24 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 17 January 2020 (“Board’s Decision”) dismissing the applicant's appeal against the decisions of the Director of Immigration (“Director”) dated 13 February 2015 and 31 May 2017 (“Director’s Decisions”) 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/HCAL000267_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 harmed or killed by his creditor due to his inability to repay his 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 23 April 2025.  The applicant attended the hearing in person, and informed this court that he wanted to go back to his country.  Thus, the discussion of this Leave Application becomes moot.

Discussion

5.The Leave Application operates as a ‘filtering’ process and there is no requirement or expectation to give elaborate reasons for my decision.[1]  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[2], 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.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, although the Board accepted the applicant’s evidence as being truthful, it however found that the risk of harm was localized and that internal relocation would be viable.  Thus, the Board rejected the applicant’s appeal. These are findings of fact, which the court in a judicial review will not interfere with, subject to there being any public law errors.

9.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[4].

Application to Withdraw

10.In view of the applicant’s indication of his intention to withdraw the Leave Application, I asked the applicant to confirm his application under oath.  The applicant affirmed that he wanted to withdraw the Leave Application as his problem at home has been resolved.  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.

11.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.

Order

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

13.The Leave Application be dismissed.

Dated the 6^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