Alam Mahtab v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2306/2024

[2026] HKCFI 4504

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2306 of 2024

BETWEEN

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.  By virtue of the memorandum filed by the Director of Legal Aid, the statutory stay of these proceedings be uplifted pursuant to s 15(7) of the Legal Aid Ordinance.

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 29 November 2024, 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 2024 (“Board’s Decision”) dismissing the applicant's appeal against the decisions of the Director of Immigration (“Director”) dated 21 February 2024 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/2024/HCAL002306_2024_files/the_Board's_Decision.pdf

2.The basis of the applicant’s claim was that, if refouled to India, he would be harmed or killed by the moneylender and his underlings due to the non-payment of a 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.

3.At the applicant’s request for a hearing of the Leave Application, this court scheduled a hearing on 23 July 2026. The applicant was detained in Tai Tam Gap Correctional Institution. Upon his indication that he wished to attend the scheduled hearing, a body order was issued to have him brought to court.

4.By virtue of a “Memorandum of Notification of an Application for Legal Aid” filed on 10 July 2026, these proceedings shall, unless uplifted by the court, be statutorily stayed for 42 days until 6 August 2026. At the hearing, this court explained to the applicant about the Legal Aid statutory stay, and asked him if he wished to proceed with the proceedings. After the applicant indicated that he understood the statutory stay, he indicated that he wished to carry on with the hearing without a stay. Hence, this court ordered the uplift of the statutory stay and proceed with the proceedings.

5.The applicant stated that he still had problems back home and asked to be given more time to stay in Hong Kong as he would like to attend a medical appointment for his hearing problem.

Discussion

6.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.

7.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. The Form 86 and the supporting affirmation provided no such grounds.

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.[4]  In the present case, the Board accepted the core aspects of the applicant’s claims about past events in India. The Board found that the applicant would not face any risk of harm if refouled as the past ill-treatment did not reach the requisite level of severity. The Board also found that 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.

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 submitted no written grounds in support of the Leave Application. Neither could the applicant’s submissions at the hearing be accepted as valid grounds. 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].

Order

10.By virtue of the memorandum filed by the Director of Legal Aid, the statutory stay of these proceedings be uplifted pursuant to s 15(7) of the Legal Aid Ordinance.

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

Dated the 14^th day of August 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