MOLLA DIN ISLAM v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 291/2020

[2025] HKCFI 2150

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 291 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.

Observation for the Applicant

Introduction

1.  By prescribed Form 86 filed on 3 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 17 January 2020 (“Board’s Decision”) dismissing the applicant's appeal against a decision of the Director of Immigration (“Director”) dated 11 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/HCAL000291_2020_files/the_Board's_Decision.pdf

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

3.  The basis of the applicant’s claim is that he would be harmed or killed by members or supporters of the Awami League due to his membership and support for the rival Bangladesh Nationalist Party. 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 17 April 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.

7.  In his Form 86, the applicant stated that his ground for judicial review was that the Board’s Decision was unreasonable because his claim was not carefully considered. In his supporting affirmation, he stated that the decision maker failed to consider all the matters raised in his claim and/or give adequate reasons for the decision. However, he did not provide any particulars.

8.  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 stated that his feud with his family member has not yet been resolved. His brothers from Malaysia have come back, and he has land disputes with them.

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.[3] In the present case, the Board rejected the claim because it found that the applicant’s evidence was not credible due to material discrepancies in his evidence, which the Board drew his attention to, but he was unable to provide a plausible or satisfactory explanation. Nevertheless, the Board proceeded to assess the risk of harm on the assumption that the applicant’s allegations were true. The Board found that the applicant did not sustain any serious injuries and thus found that there was no real risk of harm. The Board also found that state protection was available and internal relocation would be 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.

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. The applicant has not shown any errors of law or procedural unfairness or irrationality in the Board’s Decision. His further submissions at the hearing are not even concerned with any of the alleged errors of the Board. 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

11.  After the hearing, the Removal Assessment and Litigation (Removal and Deportation) Section of the Immigration Department faxed to the court a letter dated 13 May 2015, informing the court that the applicant wanted to withdraw “all non-refoulement claim including any appeal/judicial review and willingness of return to the home country”. Enclosed with this fax is a form completed by the applicant, confirming his withdrawal.

12.  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

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