Rahman Asikur v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1076/2022

[2026] HKCFI 3851

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1076 of 2022

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.  There shall be no extension of time granted to the applicant for the filing of the Form 86.

2.  The applicant’s 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 12 October 2022, 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 May 2022 (“Board’s Decision”) dismissing the applicant's appeal against a decision of the Director of Immigration (“Director”) dated 22 April 2021 rejecting the applicant's non-refoulement claim on all applicable grounds[1]. The Board’s Decision can be viewed at the following hyperlink: -

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2022/HCAL001076_2022_files/the_Board's_Decision.pdf

2.The basis of the applicant’s claim was that, if refouled to Bangladesh, he would be harmed or killed by the people from the Awami League party as the applicant was an active member of its opposition party, the Bangladesh Nationalist Party. 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.

3.At the applicant’s request for a hearing of the Leave Application, this court scheduled a hearing on 7 May 2026. The applicant attended the hearing in person and stated that he had nothing to say.

Discussion

4.A leave application operates as a “filtering” process. Hence, there is no requirement or expectation to give elaborate reasons for my decision.[2] It is therefore 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[3], and further to make full and frank disclosure of all material facts to be verified by an affidavit. In the Form 86, the applicant averred that at the hearing before the Board, he was not given a fair opportunity to present his submissions and that the Board had significantly relied on the source of news which was not officially recognized or was hearsay. The same averments were repeated in his supporting affirmation.    

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.[4]  In the present case, in assessing the applicant’s credibility, the Board had considered all the evidence as a whole, and found that the applicant failed to produce any evidence to support his claims. The Board found that the applicant would not face any risk of harm if refouled. It further found that the alleged past ill-treatment failed to achieve the requisite level of severity. It also found that both state protection and internal relocation would be reasonably available. 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 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’s grounds stated in the Form 86 and the supporting affirmation were general and did not condescend to particulars. 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[5].

Whether to extend time for the late application

8.Another matter I need to consider is the delay. Pursuant to O 53 r 4(1) of the Rules of the High Court, an application to apply for judicial review shall be made promptly and in any event within 3 months from the date of the Board’s Decision. The applicant was late for almost 2 months.

9.Whilst I do not regard the delay in this case is significant, the applicant nonetheless provided no explanation for the delay. Having regard to the lack of good prospects of success of his intended challenge, I refuse to exercise my discretion to grant the applicant an extension of the time to file the Leave Application out of time.

Orders

10.There shall be no extension of time for the applicant to file the application for leave to apply for judicial review out of time.

11.The applicant’s application for leave to apply for judicial review be dismissed.

Dated the 17^th day of July 2026

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