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HCAL 3690/2019
[2025] HKCFI 1168
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 3690 of 2019
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Islam Mohammad Nazrul |
Applicant |
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and
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
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Putative Respondent |
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and
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Director of Immigration
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Putative Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)
Following:
Order by Deputy High Court Judge (Non-refoulement Claims) Philips Wong
The application for leave to apply for judicial review be dismissed.
Observations for the Applicant:
Introduction
1. By Form 86 filed on 11 December 2019 (the “Form”), the Applicant applied for 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 5 December 2019 (the “Board’s Decision”).
2. The Applicant had requested for an oral hearing for the application. The hearing was held on 5 March 2025. The Applicant was reminded of the hearing on 3 March 2025 by phone and he confirmed that he would attend. Nevertheless, the Applicant did not show up at the hearing.
Background
3. The Applicant’s background, the basis 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 here. The hyperlink to the Board’s Decision is included below [1] for reference.
Discussion
4. The applicable legal principles relating to application of this sort are well established. The role of the Court in a judicial review is not to provide a further avenue of appeal. The primary decision makers are the Director of Immigration (the “Director”) and the Board. Though in non‑refoulement cases, the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. Assessment of evidence, country of origin information (COI) materials, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The Court will not intervene by way of judicial review unless there are errors of law, procedural unfairness or irrationality in the decision of the Board. (See Nupur Mst v Director of Immigration [2018] HKCA 524, at §14)
5. In the Form, the Applicant has not provided any grounds in support of the Leave Application. In the supporting Affirmation dated 11 December 2019, the Applicant asked the Court to “quash” the decision of the Director as well as the decision of the Board. The Director’s decision is not a decision susceptible to judicial review once an appeal to the Board had been pursued (see Re: Moshsin Ali [2018] HKCA 549, at §§31-45). Accordingly, in so far as the Applicant applies for leave for judicial review in relation to the Director’s decision, the application fails in limine.
6. In the said supporting Affirmation, the Applicant also stated that he could not point out the real cause of error of the Board because he is not a lawyer, but he stated that this Court can find all the weakness in the Board’s Decision.
7. I have considered the Board’s Decision in details. I do not find any error of law, procedural unfairness or irrationality. Neither has the Applicant been able to demonstrate any of the same. There is nothing to indicate that the Board had failed to take into account any relevant matters. The Board’s Decision was comprehensive with adequate reasons provided. It satisfies the enhanced Wednesbury test and is not Wednesbury unreasonable or irrational. I am not satisfied that the Applicant’s intended challenge of the Board’s Decision is reasonably arguable with any realistic prospects of success.
8. Leave application of this sort is meant to be a filtering process and I am not expected to give elaborated reasons for my decision (see Re Zunariyah [2018] HKCA 14, at §23). Suffice for me to state that in reaching the decision, I have considered all the relevant documents before me, as well as the grounds advanced by the Applicant.
9. On 21 February 2025, the Applicant filed a further affirmation and stated that he now wants to go back to his country. The Applicant said he wants to withdraw the Leave Application and will go home as soon as possible. In light of this, and in light of what I have stated above, I hereby dismiss the Leave Application. (See Manik MD Mahamudun Nabi [2022] HKCA 471, at §19)
Conclusion
10. In the premises, I make an order that the Leave Application be dismissed.
Dated the 27th day of March 2025
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(Alfred Chan) |
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for Registrar, High Court |
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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant
on 27/3/2025
Islam Mohammad Nazrul
Applicant’s ref. no:
Nil |
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 27/3/2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 14769/18/12/126/B176
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 4483/18 (Formerly RBCZ/13044/15 (PSO))
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
[1] https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003690_2019_files/the_Board's_Decision.pdf
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