SAYDAN ERKAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1197/2024

[2026] HKCFI 2145

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1197 of 2024

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;

1.  The Form 86 be amended on the court’s own motion.

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

Observations for the Applicant:

Background

1.  By a “Notice of application for leave to apply for judicial review” in the prescribed Form 86 filed on 24 July 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 25 June 2024 (“Board’s Decision”) dismissing the applicant’s appeal against a decision of the Director of Immigration (“Director”) dated 25 February 2022 rejecting the applicant’s non-refoulement claim based on all applicable grounds.[1]  The Board’s Decision is set out in the following hyperlink: -

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2024/HCAL001197_2024_files/the_Board's_Decision.pdf

2.  In the Form 86, the applicant named the adjudicator of the Board as the proposed respondent and did not name any interested party. As the Board should have been the proper respondent and the Director the proper interested party, the Form 86 shall be amended on the court’s own motion.

3.  The basis of the applicant’s claim was that, if refouled to Turkey, he would be harmed or killed by the AK Party Youth and other Turkish-nationalist and anti-Kurd groups. He was also in fear that he might be forcibly recruited into the Kurdish Workers Party (“PKK”). The 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.

4.  On 12 January 202, the applicant filed an affirmation for the withdrawal of the Leave Application, stating that he no longer had any problems in his home country, and that it was safe for him to return. In the circumstances, as no request for a hearing was made, this court will determine the Leave Application without a hearing: O.53, r.3 (3) of the Rules of the High Court.

Discussion

5.  The Leave Application operates as a ‘filtering’ process and there is no requirement or expectation to give elaborate reasons for my decision.[2] It is 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 provided no such grounds. In the supporting affirmation, the applicant alleged that the Board had made mistake regarding the recruitment age for youths and that [81] and [82] of the Board’s Decision were not fair as it was impossible to remember an event that happened long time ago.

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] In the present case, the Board found that the applicant exaggerated his claims with respect to his claims that he had been subjected to some discrimination and racial abuse in employment and generally in Turkey. The Board also found that the applicant gave contradictory statements concerning his attacks from AKP Youth members. It found that the applicant’s claims that he would be harmed by the AKP Youth if refouled were speculative and not credible. After having considered the relevant COI, the Board found no evidence suggesting that the PKK engaged in forced recruitment of Kurdish people in Western Turkey. The Board therefore found that the applicant’s asserted risks of harm were extremely low. These are findings of fact, which the court in a judicial review will not interfere with subject to there being any public law errors.

8.  Bearing in mind the enhanced standard that should be adopted in scrutinizing the decision of the Board, this court is satisfied that the Board correctly applied the law relating to all the grounds and observed a very high standard of fairness. The applicant’s allegations stated in the supporting affirmation were vague and lacked particulars. He has not shown any errors of law or procedural unfairness or irrationality in the Board’s Decision, nor were such grounds identified in the Form 86 or otherwise. The applicant’s intended challenge to the Board’s Decision is not reasonably arguable with any realistic prospects of success such that would enable this court to grant leave.[5]

Withdrawal application

9.  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.

Orders

10.  The Form 86 be amended on the court’s own motion.

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