MIAH KABIR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1316/2020

[2025] HKCFI 3584

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1316 of 2020

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

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

1.  Form 86 be amended on the court’s own motion as follows:-

a.  the Torture Claims Appeal Board /  Non-refoulement Claims Petition Office be named as the only Putative Respondent; and

b.  the Director of Immigration be named as the Putative Interested Party;

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

Observations for the Applicant:

Introduction

1.  By Form 86 filed on 26 June 2020 (the “Form 86”), the Applicant sought leave to apply for judicial review (the “Leave Application”) against the decision of the Torture Claims Appeal Board / Non‑refoulement Claims Petition Office (the “Board”) dated 15 April 2019 (the “Board’s Decision”).

2.  The Applicant named both the Board and the Director of Immigration (the “Director”) as the proposed respondents. As it is usual practice that the Board should be the proposed respondent whereas the Director should be the proposed interested party, I make an order to amend the Form 86 accordingly on the court’s own motion.

3.  An oral hearing was requested by the Applicant. It took place before me on 25 July 2025 (the “Hearing”) and the Applicant attended in person.

Background

4.  The Applicant’s background, the basis and history of his claim and the arguments he advanced had been set out in details in the Board’s Decision, and it is not necessary for me to repeat the same herein. The hyperlink to the Board’s Decision is included below[1] for reference. In short, the Applicant claims that he would be seriously harmed by his relatives[2] (the “Adversaries”) who were members of the Awami League (“AL”) a political party if he were to return to Bangladesh because of his political involvement as a local leader of the Bangladesh Nationalist Party (“BNP”).

The Leave Application is out of time

5.  By virtue of Order 53, rule 4(1) of the Rules of the High Court, Cap 4A, the applicant has 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. Hence, the deadline for making the Leave Application is 15 July 2019. However, the Form 86 was filed late for about 11 months.

Applicant’s application to withdraw

6.  At the Hearing, the Applicant informed me that he would like to withdraw the Leave Application as it was no longer dangerous for him to return to Bangladesh. After I reminded him to consider the matter carefully and that he might not be allowed to make another application based on the same facts, he confirmed with me that he would nevertheless like to withdraw the Leave Application.

7.  In the circumstances, there is no indication that the Applicant’s withdrawal is not out of his own volition. Accordingly, I give leave to him to withdraw.

8.  In light of the Applicant’s withdrawal, the challenge against the Board’s Decision becomes moot. It is not necessary for me to adjudicate on the merits of the Leave Application, see: Re Manik Md Mahamudun Nabi [2022] HKCA 471; Ngo Xuan Tuyen v Torture Claims Appeal Board [2024] HKCA 1140.

Conclusion

9.  I make an order that the Form 86 be amended as described above and the Leave Application be 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