Anju Mrs v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 3445/2019

[2025] HKCFI 3948

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3445 of 2019

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 be amended on the court’s own motion. 

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

Observations for the Applicant:

Introduction

1.By a “Notice of application for leave to apply for judicial review” in the prescribed Form 86 filed on 20 November 2019, 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 14 November 2019 (“Board’s Decision”) dismissing the applicant's appeal against a decision of the Director of Immigration (“Director”) dated 2 August 2017 (“Director’s Decision”) rejecting the applicant's non-refoulement claim on BOR 2 risk[1] ground. The Board’s Decision can be viewed at the following hyperlink: -

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003445_2019_files/the_Board's_Decision.pdf

2.The applicant’s non-refoulement claim based on the risk of torture[2], BOR 3 risk[3] and persecution risk[4] under the USM[5]  was previously rejected by the Director in his earlier decision dated 14 August 2015. The applicant’s appeal to the Board against the said decision was dismissed by the Board’s earlier decision dated 19 January 2017, which decision is not the subject matter of the Leave Application.

3.In the Form 86, the applicant named both the Director as the proposed respondent as well as the interested party. As the Board should have been the proper respondent and the Director the interested party, the Form 86 will be amended accordingly on the court’s own motion.

4.As no request for a hearing was made, this court will determine the Leave Applicant without a hearing: O.53, r.3 (3) of the Rules of the High Court.

5.The basis of the applicant’s claim was that she would be harmed or killed by (i) the Awami League people because of her different political affiliation; and (ii) her husband because of her involvement in a dangerous drug case in Hong Kong, which disgraced him. 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.

Discussion

6.The Leave Application operates as a ‘filtering’ process and there is no requirement or expectation to give elaborate reasons for my decision.[6]  It is sufficient to state my observations after considering the Board’s Decision and the applicant’s materials adduced.

7.In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly[7], and further to make full and frank disclosure of all material facts to be verified by an affidavit. However, the applicant provided no such grounds either in the Form 86 or the supporting affirmation.

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.[8]  In the present case, the Board assessed the applicant’s level of risk of harm on her return to Bangladesh to have been low. Thus, having considered the fact that she had divorced from her husband and that the AL people never threatened or physically ill-treated the applicant, the Board concluded that the applicant would not face a personal or real risk of being subjected to BOR 2 ill-treatment. 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 in the Board’s Decision. The applicant has not advanced any grounds. In the circumstances, I find that 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[9].

Withdrawal of the Leave Application

10.On 20 August 2025, the applicant filed an affirmation applying for withdrawal of the Leave Application, stating that she wanted to go back to her country as soon as possible.

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 be amended on the court’s own motion.

13.The application for leave to apply for judicial review be dismissed.

Dated the 5^th day of September 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