SHEIKH MD NAZRUL ISLAM v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 432/2020

[2025] HKCFI 2172

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 432 of 2020

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;

The Leave Application be dismissed.

Observations for the Applicant:

Introduction

1.  By prescribed Form 86 filed on 17 March 2020, 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 3 January 2020 (“Board’s Decision”) dismissing the applicant's appeal against a decision of the Director of Immigration (“Director”) dated 7 January 2019 (“Director’s Decision”) rejecting the applicant's non-refoulement claim on all applicable grounds. The Board’s Decision can be viewed at the following hyperlink: -

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000432_2020_files/the_Board's_Decision.pdf

2.  The basis of the applicant’s claim is that he would be harmed or killed by members of the Awami League (“AL”) due to his membership of and support for the rival Bangladesh Nationalist Party and his refusal to accede to their demands for extortion money. The Board’s 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.

3.  At the applicant’s request for a hearing of the Leave Application, this court scheduled a hearing on 17 April 2025. The applicant attended the hearing in person and told this court that he had nothing to say as he had decided to go back to his country. He also stated that he had informed the Immigration Department about his decision 3 weeks ago.

Discussion

4.  The Leave Application operates as a ‘filtering’ process and there is no requirement or expectation to give elaborate reasons for my decision.[1] It is sufficient to state my observations after considering the Board’s Decision and the applicant’s materials adduced.

5.  In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly[2], and further to make full and frank disclosure of all material facts to be verified by an affidavit.

6.  In his Form 86 and supporting affirmation, the applicant did not raise any grounds for judicial review.

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.[3] In the present case, the Board found that the applicant’s evidence was illogical, unreasonable and inconsistent. Nevertheless, the Board proceeded to assess his claim on the assumption that his allegations were accepted. The Board found that the applicant’s injuries were not serious, and that state protection was available and internal relocation would be viable. Thus, the Board concluded there was no real risk of harm, and dismissed the appeal. 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 Board’s Decision, this court is satisfied that the Board correctly applied the law relating to all the grounds and observed a high standard of fairness in its Decision. The applicant has not shown any errors of law or procedural unfairness or irrationality in the Board’s Decision. The applicant’s intended challenge to the Board’s Decision is not reasonably arguable with realistic prospects of success such that would enable this court to grant leave[4].

Application to Withdraw

9.  In view of the applicant’s indication of his decision to withdraw the Leave Application, I asked the applicant to confirm his application under oath. The applicant affirmed that the problem in his country has been resolved and that it is now safe for him to return. He also confirmed that he was making the withdrawal application voluntarily and understood the consequence of his withdrawal- that the Board’s Decision would remain binding.

10.  In the circumstances, I think it is appropriate, as a matter of practice, to dismiss his Leave Application instead of merely granting leave to withdraw the Leave Application (Re Rini Artini [2020] HKCA 709 at§9).

Order

11.  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