Chowdhury Al Momin v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 212/2020

[2025] HKCFI 2063

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 212 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 (Non-refoulement Claims) Teresa Wu:

(1)   Form 86 be amended, adding the Director of Immigration as the Putative Interested Party.

(2)   The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.By Form 86 (“Form 86”) filed on 20 January 2020, the Applicant applies for leave to apply for judicial review (“the Leave Application”) of the decision of the Torture Claims Appeal Board/ Non-refoulement Claims Petition Office (“the Board”) dated 15 January 2020 (“the Board’s Decision”) confirming the decision of the Director of Immigration (“the Director”) dated 13 June 2019, which refused to re-open his non-refoulement claim.

2.On my own motion, I have amended Form 86 to include the Director as the proposed interested party. 

3.The material facts of this case, including the Applicant’s personal background and the immigration and procedural history, etc., have been set out in the Board’s Decision.  For completeness’ sake, reference can be made to the Board’s Decision, the hyperlink to which is included below.[1]

4.After considering the Board’s reasons for refusing the Applicant’s claim with rigorous examination and anxious scrutiny, applying an enhanced standard as required by law in view of the seriousness of the issues involved, I am not satisfied that the intended application for judicial review of the Board’s Decision is reasonably arguable with any realistic prospects of success (see Peter Po Fun Chan v Winnie Cheung & Another (2007) 10 HKCFAR 676):

(1)  Based on the evidence available, the Board found that the Applicant failed to return a completed Questionnaire to the Director, as required under section 37Y(2) of the Ordinance.

(2)  The Board also found that the Director had given the Applicant, by way of letter dated 28 December 2012 to the DLS, written notice that the Torture Claim was treated as withdrawn and that he may apply to re-open it.

(3)  To the extent that a request to re-open the Torture Claim was made by the Applicant to the Director, the Board took the view that there was insufficient evidence to show that the failure to return a completed torture claim form or Questionnaire as required under section 37Y(2) was caused by circumstances beyond his control.  

(4)  For these reasons, to the extent that a request to re-open the Torture Claim was made, the Director’s Decision was confirmed.

5.The Applicant has completely failed to identify any valid grounds for judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21/2015 (dated 22 December 2016) at §142), nor can he demonstrate that there were any procedural or other public law errors in the decision of the Board. 

6.I accordingly make an order that Form 86 be amended as described above and the Leave Application be dismissed.

Dated the 11^thday of July 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