MOHAMMED AMJAD HOSSAIN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2283/2020

[2025] HKCFI 4723

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2283 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 Leave Application out of time.

3.  The applicant’s application for leave to apply for judicial review against the Board’s Decision dated 24 May 2018 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 19 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 24 May 2018 (“Board’s Decision”) dismissing the applicant's appeal against a decision of the Director of Immigration (“Director”) dated 17 February 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/HCAL002283_2020_files/the_Board's_Decision.pdf

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

HCAL 974/2018

3.  On 30 May 2018, the applicant had previously filed the application for leave to apply for the judicial review against the same Board Decision. Upon the applicant’s application on 16 January 2020 to withdraw, Deputy High Court Judge Bruno Chan ordered on 23 January 2020 the withdrawal of the application.

4.  The basis of the applicant’s claim was that, if refouled, he would be harmed or killed by the money lender for an unpaid loan. 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.  At the applicant’s request for a hearing of the Leave Application, this court scheduled a hearing on 18 September 2025. The applicant attended the hearing in person. In view of the previous application (HCAL 974/2018) in relation to the same Board’s Decision, this court asked the applicant for clarification in relation to his filing of the Leave Application after the previous one had been withdrawn. The applicant then stated that the loan had been repaid, and that he wished to withdraw the Leave Application so that he could go home as soon as possible. I will separately discuss the withdrawal application below.

The 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. The applicant’s Form 86 and the supporting affirmation provided no grounds at all.

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 the applicant’s evidence not credible due to inconsistencies and omissions in his evidence. The Board found that there were inconsistencies and omissions, and implausible explanations related to the core of the applicant’s claims. The Board found that the applicant’s centrepiece of his claims in relation to the loan, the terms of payment, the amount outstanding, the threats to his life, the vandalism of his home, he assault by the money lender or the need to leave India in order to be safe were all untrue. The Board further found that state protection and internal relocation would be reasonably available. 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.  Having rigorously examined the Board’s Decision with anxious scrutiny, this court is satisfied that the Board correctly applied the law and the key legal principles; correctly identified the issues, and observed a very high standard of fairness. I am satisfied that there were no errors of law or procedural unfairness in the Board’s Decision. The Board was entitled to reject the applicant’s evidence in view of the numerous inconsistences and contradictions in relation to the material parts of his evidence. The applicant has not provided any grounds, whether written or oral, to support the Leave Application. 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 2 years. I consider the period of delay is lengthy and substantial.

11.  Having regard to the applicant’s previous application that he had voluntarily withdrawn, and the lack of merits of the Leave Application, I refuse to grant the applicant extension of time to file the Leave Application out of time.

Withdrawal

12.  Since the applicant had previously made an application to withdraw his leave application in respect of the same Board Decision, I asked the applicant to confirm his application to withdraw under oath. The applicant affirmed that he had recently spoken to his brother and was reassured that it was now safe for him to return. He also confirmed that he made the withdrawal application voluntarily and understood the consequence of the withdrawal that the Board’s Decision remained valid and binding.

13.  Apart from the application to withdraw the Leave Application, there is nothing outstanding in this action. In the circumstances, I should grant leave to the applicant to withdraw the Leave Application, and hereby order the dismissal of the Leave Application: see Re Manik Md Mahamudun Nabi [2022] HKCA 471.

Order

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

15.  There shall be no extension of time for the applicant to file the Leave Application out of time.

16.  The applicant’s application for leave to apply for judicial review against the Board’s Decision dated 24 May 2018 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