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

HCAL 2193/2020

[2025] HKCFI 5500

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2193 of 2020

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

Following:

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

2.   There shall be no extension of time for the applicant to file the application for leave to apply for judicial review out of time.

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

Observations for the Applicant:

Introduction

1.  By a “Notice of application for leave to apply for judicial review” in the prescribed Form 86 filed on 2 November 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 29 April 2020 (“Board’s Decision”) dismissing the applicant's appeal against the decision of the Director of Immigration (“Director”) dated 6 August 2018 (“Director’s Decision”) rejecting the applicant's non-refoulement claim on all applicable grounds except  the risk torture ground which had been previously dismissed by the Director on 20 August 2012, and his petition against the said decision was rejected by an Adjudicator (Torture Petitions) on 24 October 2012.  The Board’s Decision can be viewed at the following hyperlink: -

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL002193_2020_files/the_Board's_Decision.pdf

2.  In the Form 86, the applicant named the Board and the Immigration Department as the proposed respondents as well as the interested parties.  As the Board should have been the proper proposed respondent and the Director the interested party, the Form 86 will be amended accordingly on the court’s own motion.

3.  The basis of the applicant’s claim was that, if refouled to Bangladesh, he would be harmed or killed by Mashuk (a party member of the Bangladesh National Party) and his associates for having refused to pay extortion money to them.  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.

4.  At the applicant’s request for a hearing of the Leave Application, this court scheduled a hearing on 9 September 2025.  The applicant attended the hearing in person.  After having heard from him, this court informed him that the decision would be reserved, and be sent to his updated address.

Discussion

5.  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.

6.  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.  Apart from loosely stating that his life would be in danger in the hands of the BNP, the Form 86 and the supporting contained no grounds at all.

7.  At the hearing, this court asked the applicant whether he had any grounds he wished to submit in support of the Leave Application.  The applicant said that he had nothing to say and that he had a scheduled medical appointment in Hong Kong in November.

8.  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 was not a credible or reliable witness.  The Board doubted the authenticity of the documents (the “Injury Certificate” and a certificate headed “Bangladesh Foundation of Human Rights” dated 28 July 2018) the applicant submitted and therefore attached no weight to the them.  The Board did not accept the truthfulness of the applicant’s evidence concerning the events and the threats uttered by the alleged extortionists or the circumstances surrounding or following the alleged demands.  The Board found that the lack of credibility, coupled with the delay in the raising of the non-refoulement claim, had completely undermined the applicant’s claim, which the Board rejected.  The Board further found that internal relocation was reasonably viable.  These are findings of fact, which the court in a judicial review will not interfere with, subject to there being any public law errors

9.  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.  I am satisfied that the Board was entitled to reach the conclusion that the applicant would unlikely face risk of harm after having rejected the centerpiece of the applicant’s evidence.  The applicant’s allegations set out in the Form 86 were incoherent and did not condescend to particulars.  Neither was he able to provide any valid grounds at the hearing.  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].

Whether to extend time for the late application

10.  Another matter I need to consider is the delay.  Pursuant to O 53 r 4(1) of the Rules of the High Court, an application to apply for judicial review shall be made promptly and in any event within 3 months from the date when grounds for the application first arose.  The applicant was late for more than 3 months weeks, which is not short.

11.  The applicant did not provide any explanation for the delay.  In any event, given the conclusion this court has reached regarding the lack of merits, I refuse to exercise my discretion to allow an extension of time for the applicant to file the Leave Application.

Orders

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

13.  There shall be no extension of time for the applicant to file the application for leave to apply for judicial review out of time.

14.  The 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