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

HCAL 261/2020

[2025] HKCFI 2359

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 261 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 the Applicant being absent in open court;

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

2.  The Leave Application be dismissed.

Introduction

1.  By prescribed Form 86 filed on 23 January 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 14 January 2020 (“Board’s Decision”) dismissing the applicant's appeal against a decision of the Director of Immigration (“Director”) dated 24 July 2017 (“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/HCAL000261_2020_files/the_Board's_Decision.pdf

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

3.  The basis of the applicant’s claim was that he would be extorted, harmed or killed by Muhajirs from the Muttahida Qaumi Movement. 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 28 April 2025. Before the scheduled hearing, the Removal Assessment and Litigation (Removal and Deportation) Section of the Immigration Department faxed a letter dated 25 March 2025 to the court. In the fax, it was stated that the applicant had been granted stay in Hong Kong as a Hong Kong resident since 24 January 2022.

5.  In the circumstances, the applicant’s Leave Application is rendered moot. At the scheduled hearing, the applicant was absent despite his prior confirmation on the phone that he would be attending in person. In the circumstances, this court will proceed to consider the Leave Application in his absence.

Discussion

6.  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.

7.  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.   

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

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 was not a credible witness due to material discrepancies between his oral testimony and his evidence in his written claim form and in his interview with the Director. The Board thus found that there was no real risk of harm. 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. 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].

Order

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

12.  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