ALI MOHAMMED ARSHAD v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 3484/2019

[2025] HKCFI 3289

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3484 of 2019

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 be amended on the court’s own motion.

2.  The applicant’s 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 25 November 2019, 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”) stated in a letter to the applicant dated 20 November 2019 (“Board’s Decision”) refusing to reopen or reinstate the applicant's appeal against a decision of the Director of Immigration (“Director”) dated 5 May 2017 (“Director’s Decision”) rejecting the applicant's non-refoulement claim on the ground of BOR 2 risk[1], after he had withdrawn his appeal. The Board’s Decision can be viewed at the following hyperlink: -

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003484_2019_files/the_Board's_Decision.pdf

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

3.  At the applicant’s request for a hearing of the Leave Application, this court held a hearing on 18 July 2025, which the applicant attended in person. After having heard from him, this court informed him that the decision would be reserved, and be sent to his updated address.

Chronology

4.  Prior to the Director’s Decision, by a decision of the Director dated 11 December 2014, the Director rejected the applicant’s non-refoulement claim on the grounds of risk of torture[2], BOR 3 risk[3] and persecution risk[4] under the USM.[5] His appeal to the Board was dismissed by a decision of the Board dated 17 March 2017. The Board’s Decision can be viewed at the following hyperlink: -

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003484_2019_files/Earlier_Board's_Decision.pdf

5.  After the Board’s dismissal of the applicant’s appeal against the Director’s prior decision, the Director wrote to the applicant on 10 April 2017, inviting the applicant to submit additional facts on all applicable grounds for non-refoulement protection, including BOR 2 risk. The applicant did not send any response to the Director within the time the Director stipulated. By the Director’s Decision, the applicant’s non-refoulement claim on the ground of BOR 2 risk was dismissed.

6.  On 12 May 2017, the applicant lodged an appeal against the Director’s Decision.

7.  On 14 February 2018, the Board received a handwritten note in English with the applicant’s signature dated the same day, applying for the withdrawal of the appeal. He stated that it was safe for him to return to India, and further confirmed that his application for withdrawal was made freely and that he understood the consequences of the proposed withdrawal – that the appeal could not be reopened after it was withdrawn.

8.  On 27 February 2018, the Board accepted the applicant’s application to withdraw the appeal against the Director’s Decision after it was satisfied that the application was made freely and the he understood the consequences of the withdrawal. The Board directed that withdrawal of the appeal and that the Director’s Decision be confirmed.

9.  On 7 November 2019, the applicant wrote to the Board to request the reopening of his appeal.

10.  In the Board’s Decision by letter, the Board refused to reopen or reinstate the appeal against the Director’s Decision. It stated that after having ordered the dismissal of the applicant’s appeal against the Director’s Decision, the applicant’s appeal had been disposed of and finally determined by the Board, and that the Board was functus officio, citing Hussain Tasawar v Betty Kwan (Adjudicator) [2017] 2 HKLRD 567 (CFI).

The applicant’s grounds

11.  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.

12.  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.

13.  In his Form 86 the applicant raised the following grounds for judicial review:

(a)  the Board’s Decision was unreasonable and unfair;

(b)  insufficient importance or weight was given to state acquiescence;

(c)  though the Director listed relevant country of origin information (“COI”) that supported the applicant’s belief that the police in his country would not be able to protect him, such COI was not considered or given enough weight;

(d)  the Director showed an unfair attitude, and failed to meet the required high standards of fairness.

14.  Since there were 2 decisions of the Board, and that the intended challenge is only relation to the later decision, I therefore asked the applicant at the hearing to clarify whether it was also his intention to challenge the Board’s earlier decision. Despite having taken the applicant through the chronology, the court was unable to receive a clear answer from the applicant. He did not state that he also wanted to challenge the earlier decision of the Board. I then asked the applicant if he had anything to say in relation to the Leave Application, he said he had nothing to say.

Discussion

15.  The law dealing with the withdrawal of a claimant’s appeal to the Board is settled. As to whether a Board’s decision was correct in refusing to reinstate an applicant’s appeal after dismissing it upon the applicant’s withdrawal, it would depend on whether the applicant’s withdrawal of the appeal was valid: see Re Das Purnima Rani [2019] HKEC 1890 at [29] following the law set out in Ali Usman [2018] HKCA 955 in which the court approved the judgment of DHCJ Yee in HT (Hussain Tasawar) v Betty Kwan (supra.) At [41] to [43] the Court of Appeal in Re Das Purnima Rani set out the relevant principles:

“[41] Once the Board dismisses an appeal against the Director's refusal of a non-refoulement claim upon a valid withdrawal or abandonment of the appeal by the claimant, in the sense of being the result of a deliberate and informed decision, the appeal is no longer extant and the Board becomes functus officio with no jurisdiction to take any step regarding the appeal. As … s 37V(2)(b) of the Ordinance stipulates that a torture claim rejected by the Director is finally determined when the appeal against it, if one were lodged, was disposed of. Notwithstanding the lack of determination on the merits, the dismissal of an appeal on its withdrawal nevertheless disposed of the appeal. Otherwise, not only would there be no finality in the determination of such claims, much room would be created for abuse by claimants desirous of delaying their removal from Hong Kong by making last minute withdrawals and then subsequently applying for reinstatement of the appeals. (Emphasis added)

[42] The only option left to the claimant who has validly withdrawn his appeal to the Board is to make a fresh non-refoulement claim under s 37ZO(2) 12 if he can fulfil the requirements in sub-ss (a) and (b) thereunder.

[43] On the other hand, where a withdrawal or abandonment is invalid, it would logically be a nullity and, as such, could and would have no effect on the appeal which remains extant so that the Board can and should resume processing the same upon the claimant's application. Quite apart from the nullifying effect of an invalid withdrawal/abandonment, this conclusion also appears to us to follow from applying the high standard of fairness required in handling non-refoulement claims.” (Emphasis added)

16.  In applying the above settled principles to the present case, this court will need to consider if the applicant’s withdrawal was “the result of a deliberate and informed decision”. If not, the withdrawal would be invalid, and the Board would not be functus.

17.  In the applicant’s written grounds, insofar as the allegations against the Board are concerned, he only stated that the Board’s Decision was unfair and unreasonable without providing any particulars. Nor did he condescend to the circumstances regarding his application to withdraw. At the hearing, despite having been given assistance from the court, the applicant was still not able to advance any grounds in support of the Leave Application. In the circumstances, this court is not satisfied that the applicant has provided any grounds in contesting the validity of his earlier withdrawal of his appeal to the Board against the Director’s Decision.

18.  For these reasons, I am of the view that 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[8].

Orders

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

20.  The applicant’s 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