SYED IRFAN HAIDER v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 394/2020

[2025] HKCFI 2764

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 394 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;

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

2.  The Leave Application be dismissed.

Observations for the Applicant:

Introduction

1.  By prescribed Form 86 filed on 12 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/adjudicator of the Non-Refoulement Claims Petition Office (“Board”) dated 5 March November 2020 (“Board’s Decision”) dismissing the applicant’s appeal against the decision of the Director of Immigration (“Director”) dated 12 March 2019 (“Director’s Decision”) rejecting the applicant’s non-refoulement claim.

2.  In the Form 86, the applicant did not name any party as the proposed respondent and named two individual persons’ names as the interested parties. As the Board should have been the proper proposed respondent and the Director interested party, the Form 86 will be accordingly amended on the court’s own motion.

Background

3.  The background as taken from the Director’s Decision and Board’s Decision can be briefly stated as follows.

4.  The applicant is a national of India. The applicant came to Hong Kong on 26 December 2016. On 12 January 2017, the applicant lodged a non-refoulement application, relying on all applicable grounds: risk of torture[1], BOR 2 risk[2], BOR 3 risk[3] and persecution risk[4] under the USM.[5] The claim was based on a fear of being harmed or killed by four enemies who were notorious criminals in India. 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.

5.  On 13 June 2025, the court received a memo from the Removal Assessment and Litigation (Removal and Deportation) Section of the Immigration Department. Enclosed with the said memo is the applicant’s signed memo to court together with an English translation dated 2 June 2025 applying for withdrawal of the Leave Application. In the circumstances, this court will dispose of the Leave Application on paper.

Discussion

6.  The Leave Application operates as a ‘filtering’ process and there is no requirement or expectation to give elaborate reasons for my decision.[6] It is sufficient to state my observations after considering the Board’s Decision and the applicant’s materials adduced.

7.  In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly[7], and further to make full and frank disclosure of all material facts to be verified by an affidavit.

8.  In his affirmation in support of his Form 86, the applicant only stated that the situation in Indian was very dangerous. However, in the Form 86 or otherwise, the applicant was not able to say as to on what basis the Board is said to have acted unlawfully or procedurally unfairly in reaching its decision, or how such decision could be said to be Wednesbury unreasonable. The applicant has failed to identify any arguable error of law, any relevant matter that the Board had allegedly failed to consider or any other reason why the Board was wrong.

9.  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.[8] In the present case, whilst the Board accepted the applicant’s disputes with the gangsters, it however found that the disputes were personal, and that state protection and internal relocation were both reasonably available. The Board rejected the applicant’s 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.

10.  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 the Board’s Decision. I find that 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[9].

Withdrawal of Leave Application

11.  In the memo, the applicant stated that he could return home as all the issues in his home country had been resolved. He wished to go home as soon as possible.

12.  Apart from the application to withdraw the Leave Application, 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

13.  The Form 86 is amended on the court’s own motion.

14.  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