HOSSAIN AJMET alias AJMET HOSSAIN v. TORTURE CLAIMS APPEAL BOARD

HCAL 1965/2020

[2025] HKCFI 3673

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1965 OF 2020

Application for leave to apply for judicial review
NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

	consideration of the documents only; or
	consideration of the documents and oral submissions by the applicant or counsel in open court;

1.   On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board” and the decisions in respect of which relief is sought be amended to “Director of Immigration’s decision dated 17 May 2018” and “Torture Claims Appeal Board’s decision dated 26 March 2019”.

2.   The applicant’s application to withdraw the application for leave to apply for judicial review be refused.

3.   The applicant’s application for leave to apply for judicial review in respect of the Director of Immigration’s decision dated 17 May 2018 be dismissed.

4.   The applicant’s application for leave to apply for judicial review in respect of the Torture Claims Appeal Board’s decision dated 26 March 2019 be dismissed.

Observations for the applicant:

The Leave Application

1.  By way of Form 86 dated and filed on 30 September 2020, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of two decisions, namely “The decision made on unknown date but notice on of 17 May 2018” and “the decision dated 26 March 2019 Adjudicator, Torture Claims Appeal Board”.

2.  It seems that the first decision referred to by the applicant was the decision of the Director of Immigration (“the Director”) dated 17 May 2018 (“the Director’s Decision”), which rejected the applicant’s non-refoulement claim based on BOR 2 Risk[1], BOR 3 Risk[2] and Persecution Risk[3] under the Unified Screening Mechanism. 

3.  The applicant had previously made a torture claim under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment on 27 May 2007, and the Director rejected his torture claim on 24 January 2011.  Hence, it was not necessary for the Director to deal the applicant’s Torture Risk[4] again in the Director’s Decision.

4.  The second decision was the decision of the Torture Claims Appeal Board (“the Board”) dated 26 March 2019 (“the Board’s Decision”), which was issued in the form of a letter. 

5.  As stated in the Board’s Decision, the Board had considered the applicant’s application to withdraw his appeal/petition against the Director’s Decision.  After consideration, the Board was satisfied that the applicant’s application to withdraw was freely sought and that the applicant understood the consequences of the withdrawal.  The Board was also satisfied that there was good reason for the applicant’s proposed withdrawal, namely the applicant considered it safe for him to return to his home country.

6.  Under the circumstances, the Board gave the directions that the applicant’s appeal/petition was withdrawn and the Director’s Decision was confirmed.

Amendments

7.  In Form 86, the applicant named “Torture Claims Appeal Board, Non-Refoulement Claims Petition Office” as the putative respondents, when only the Board should be so named.

8.  The Non-refoulement Claims Petition Office is just an office providing administrative and secretariat support to the adjudicators of the Board, and should not be named as a putative respondent at all.

9.  Thus, on this court’s own motion, the name of the putative respondent is amended to “Torture Claims Appeal Board”.

10.  As aforementioned, the decisions in respect of which relief is sought in the Leave Application should be the Director’s Decision and the Board’s Decision. 

11.  Thus, on this court’s own motion, the decisions in respect of which relief is sought are amended to “Director of Immigration’s decision dated 17 May 2018” and “Torture Claims Appeal Board’s decision dated 26 March 2019”.

The intended judicial review in respect of the Director’s Decision

12.  As held by the Court of Appeal in Re Moshsin Ali [2018] HKCA 549, only the Board’s Decision is reviewable by judicial process and not the Director’s Decision.  There are established statutory procedures of appeal from the Director to the Board and the applicant had invoked those procedures.  The Director’s Decision was superseded by the Board’s Decision and is no longer susceptible to judicial review.

13.  Thus, the applicant’s application for leave to apply for judicial review in respect of the Director’s Decision is dismissed.  This court will consider the Leave Application in respect of the Board’s Decision only.

Late application

14.  By virtue of Order 53, rule 4(1) of the Rules of the High Court, Cap 4A, the applicant had to make the Leave Application within 3 months when the grounds for the Leave Application first arose, ie when the Board’s Decision was made.

15.  However, the applicant filed Form 86 on 30 September 2020, which was more than 18 months after the Board’s Decision (made on 26 March 2019).  The applicant was hence late for more than 15 months in making the Leave Application, and this court has to consider whether there is any good reason to extend the time for the applicant to make the Leave Application.

16.  As held in AW v Director of Immigration [2016] 2 HKC 393, the criteria for granting an extension of time are:

(i)      the length of the delay;

(ii)     the reason for the delay;

(iii)    the merits of the intended application; and

(iv)    any prejudice to the putative respondent and to public administration.

17.  The applicant did not make any application for extension of time.  A delay of more than 15 months is very substantial, and there is no justification for the delay when no explanation was given by the applicant.  There is also no merits of the intended judicial review as discussed below. 

18.  Having considered the above criteria, this court is not prepared to grant any extension of time to the applicant to file the Leave Application, even if an application for extension of time was made. The Leave Application can therefore be dismissed on the ground of being made out of time alone.

19.  However, for the sake of completeness, this court will still examine the merits of the Leave Application.

The applicant’s case

20.  It is not necessary for this court to discuss the details of the applicant’s non-refoulement claim here as the Leave Application is only about the applicant’s challenges regarding the Board’s decision in allowing his withdrawal of his appeal/petition to the Board and the Board’s confirmation of the Director’s Decision.

Withdrawal of the Leave Application

21.  The applicant requested for an oral hearing of the Leave Application, but before a hearing is fixed, the Director sent a letter dated 14 July 2025 to inform this court that the applicant had written a letter dated 29 April 2025 to withdraw his application for judicial review.

22.  As stated in the applicant’s said letter, the reason he gave for his withdrawal application was that he wanted to return to his home country as soon as possible, his issue in his home country had been resolved and it was safe for him to go home.

23.  There is no evidence to show that the applicant made the withdrawal application other than out of his own volition.  With this withdrawal application, it is clear that the applicant no longer wishes to proceed with the Leave Application or any oral hearing for the Leave Application.  It is therefore not necessary for this court to afford him any oral hearing for the Leave Application even though he had requested one before.

24.  However, the Court of Appeal had held in Re Manik Md Mahamudun Nabi [2022] HKCA 471 that:-

“The applicant on his own motion applied to the Court to withdraw his application for leave to apply for judicial review. The Judge acceded to his application, whereupon there was nothing outstanding in the action. The Judge was correct to conclude the action by ordering a dismissal of the application instead of leaving the action at large.”

25.  Thus, this court should deal with the Leave Application instead of leaving the action at large by granting leave to withdraw to the applicant.

Grounds for judicial review

26.  The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).

27.   However, the applicant did not advance any ground for his intended judicial review in Form 86, nor in his supporting affirmation dated 30 September 2020. 

Discussion

28.  The role of the court in judicial review is not to re-assess the non-refoulement claims afresh.  The primary decision-makers in a claim for non-refoulement are the Director and the Board.  They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  The court will scrutinize the Board’s decision and intervene by way of judicial review only for errors of law, procedural unfairness or irrationality (see Nupur Mst v Director of Immigration [2018] HKCA 524).

29.  Thus, despite that the applicant did not advance any specific ground for the intended judicial review, this court will still scrutinize the Board’s Decision for any errors of law, procedural unfairness and irregularities.

30.  The main question here is whether the withdrawal of the applicant’s appeal/petition was valid or not.  As held by the Court of Appeal in Re Das Purnima Rani [2019] HKCA 669, if the withdrawal or abandonment of the appeal is a valid one, in the sense of being the result of a deliberate and informed decision, the appeal is no longer extant and the Board becomes functus officio with no jurisdiction to take any step regarding the appeal.  On the other hand, where a withdrawal or abandonment is invalid, it would logically be a nullity and, as such, could and would have no effect on the appeal which remains extant so that the Board can and should resume processing the same upon the applicant’s application.

31.  It is clear from the Board’s Decision that the applicant’s application to withdraw the appeal/petition was freely sought, and the applicant understood the consequences of his withdrawal. More importantly, the Board was also satisfied that there was good reason for the applicant’s withdrawal, namely, that the applicant considered it safe for him to return to his home country.

32.  Clearly, the applicant did make a deliberate and informed decision to withdraw his appeal/petition.  There is no evidence to show that the applicant made the above withdrawal application other than out of his own volition.  The withdrawal of the appeal/petition by the applicant was therefore a valid one.

33.  This court fails to see how the Board erred in acceding to the applicant’s request to withdraw or abandon his appeal/petition.  

34.  Moreover, section 37ZTA(2) of the Immigration Ordinance, Cap 115, stipulates that an appeal against a decision is withdrawn once a notice to withdraw the appeal is received by the Board.  The Board did receive the applicant’s letter dated 13 March 2019 applying to withdraw his appeal/petition.  Thus, irrespective of whether the Board gave the direction that the applicant’s appeal/petition was withdrawn or not, the appeal was withdrawn by virtue of section 37ZTA(2). There is simply no substance in the applicant’s intended judicial review when the applicant had withdrawn the appeal/petition.

35.  Having rigorously examined the Board’s Decision with anxious scrutiny, this court is satisfied that there was no errors of law, procedural unfairness or irrationality in the Board’s Decision.  The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision. 

36.  As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, for the court to grant leave to apply for judicial review, the claim has to be a reasonably arguable claim which enjoys realistic prospects of success.  It is the view of this court that the intended judicial review has no realistic prospects of success at all, and hence the Leave Application must be dismissed.

Conclusion

37.  For reasons aforesaid, the application for leave to withdraw the Leave Application is refused and the Leave Application in respect of both the Director’s Decision and the Board’s Decision is dismissed.

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