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

HCAL 1022/2021

[2025] HKCFI 2672

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1022 of 2021

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:

Background

1.By prescribed Form 86 filed on 20 July 2021, 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 16 June 2021 (“Board’s Decision”) dismissing the applicant’s appeal against a decision of the Director of Immigration (“Director”) dated 5 June 2018 rejecting the applicant’s non‑refoulement claim based on all applicable grounds. The Board’s Decision is set out in the following hyperlink: -

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2021/HCAL001022_2021_files/the_Board's_Decision.pdf

2.The basis of the applicant’s claim was that he would be harmed or killed by a radical activist of the Awami League and the members of the Bangladesh National Party. The 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.The applicant has requested for an oral hearing. On 6 February 2025, the applicant filed an affirmation applying for the withdrawal of the Leave Application. In the circumstances, this court will dispose of the Leave Application on paper.

Discussion

4.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.

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. In the applicant’s Form 86 and his supporting affirmation, the applicant provided not such grounds.

6.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, after having considered the applicant’s documentary and oral evidence given at the hearing, the Board found that the applicant’s alleged threats and harm did not amount to the infliction of the severe pain or suffering, and that he failed to establish that if refouled, there were substantial grounds for believing that he would be subjected to torture after having considered the applicant’s evidence individually and cumulatively as well as his personal circumstances. The Board further found that the applicant’s delay in the raising of the non-refoulement claim had undermined any imminent danger or threat. The Board also found that internal relocation would be reasonably viable. These are findings of fact, which the court in a judicial review will not interfere with subject to there being any public law errors.

7.Bearing in mind the enhanced standard that should be adopted in scrutinizing the decision of the Board, this court is satisfied that the Board correctly applied the law relating to all the grounds and observed a very high standard of fairness. The applicant has not shown any errors of law or procedural unfairness or irrationality in the Board’s Decision, nor were such grounds identified in the Form 86 or otherwise. The applicant’s intended challenge to the Board’s Decision is not reasonably arguable with any realistic prospects of success such that would enable this court to grant leave[4].

Withdrawal application

8.In his affirmation, the applicant stated he would like to withdraw the Leave Application because his problem at home had been solved and it was safe for him to return.

9.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

10.The Leave Application be dismissed.

Dated the 27^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