Barua Pronab v. Torture Claims Appeal Board / Non-refoulement Claims Petition

HCAL 1057/2026

[2026] HKCFI 5213

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1057 of 2026

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:  

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

Background

1.By a “Notice of application for leave to apply for judicial review” in the prescribed Form 86 filed on 10 June 2026, the applicant applied for leave to apply for judicial review (“Leave Application”). The intended judicial review was purportedly against the decision of the Director of Immigration (“Director”) dated 1 December 2025 (“Director’s Decision”) rejecting the applicant’s non-refoulement claim based on all applicable grounds[1].

2.By a letter dated 19 January 2026, the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) referred to the applicant’s Notice of Withdrawal against the Director’s Decision filed with the Board on 15 January 2026. In the letter, the Board stated (“Board’s Direction”) that the applicant’s appeal had been withdrawn, and that the Board would take no further action.

3.The basis of the applicant’s claim was that, if refouled to Bangladesh, he would be harmed or killed by (i) the local Muslim thugs who wanted to rid of non-Muslims in the areas; and (ii) the religious fanatics of the Bangladesh National Party after the downfall of the Awami League to which the applicant belonged.

4.The court had rescheduled a hearing of the Leave Application on 15 September 2026. On 4 September 2026, the Removal Assessment and Litigation (Removal and Deportation) Section (3) of the Immigration Department faxed a letter to the court, informing the court that the applicant would like to withdraw his judicial review application. Enclosed with the said letter was the applicant’s signed hand-written memo in English dated 3 September 2026. In the memo, the applicant stated that he would like to withdraw the Leave Application and requested for early repatriation. In the circumstances, this court will dispose of the Leave Application on paper.

Discussion

5.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.

6.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 applicant’s Form 86 and the supporting affirmation, the applicant provided no such grounds.  

7.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] 

8.In the Form 86, the subject date of the decision was plainly referrable to the Director’s Decision. However, the applicant named the “TCAB”, which is the common abbreviation of the Board, as the proposed respondent. I therefore find that the applicant’s Leave Application lacked clarity.

9.If the Leave Application is against the Director’s Decision, it is clearly procedurally irregular, and should be dismissed without evening taking into account the delay obstacle.

10.If the Leave Application is against the Board’s Direction, I also find that there are no merits. The applicant has provided no evidence to show that the Notice of Withdrawal before the Board was invalid. In any event, the issue of whether an appeal to the Board has been validly withdrawn is a jurisdictional matter for the Board to determine[5].

11.Bearing in mind the enhanced standard that should be adopted in scrutinizing the decision of the Board, this court is satisfied is not reasonably arguable with any realistic prospects of success such that would enable this court to grant leave[6].

Withdrawal application

12.Apart from the application to withdraw the Leave Application referred to above, 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

13.I direct the hearing on 15 September 2026 be vacated.

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

Dated the 15^th day of September 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