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

HCAL 3771/2019

[2025] HKCFI 1437

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3771 of 2019

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

Following;

	consideration of documents only;          or
	consideration of documents and oral submissions by the Applicant in open court;

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

Observations for the Applicant:

Introduction

1.  By Form 86 filed on 18 December 2019 (the “Form”), the Applicant applied for leave to apply for judicial review (the “Leave Application”) against the decision of the Torture Claims Appeal Board/ Non-refoulement Claims Petition Office (the “Board”) dated 29 November 2019 (the “Board’s Decision”).

2.  The Applicant had requested an oral hearing for the application.  The hearing took place on 14 March 2025 and the Applicant attended in person.  At the hearing, the Applicant indicated that he now wants to go back to his country.  He said the “problems” mentioned in the claims in his country have been resolved.  The Applicant further indicated that he wants to withdraw the Leave Application.

Background

3.  The Applicant’s background, the basis of his claim and the arguments he advanced had been set out in details in the Board’s Decision, and it is not necessary for me to repeat the same here.  The hyperlink to the Board’s Decision is included below[1] for reference.

Discussion

4.  The applicable legal principles relating to application of this sort are well established.  The role of the Court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director of Immigration (the “Director”) and the Board.  Though in non-refoulement cases, the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board.  Assessment of evidence, country of origin information (COI) materials, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director).  The Court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.  (See Nupur Mst v Director of Immigration [2018] HKCA 524, at §14)

5.  In the Form, the Applicant did not provide any grounds in support of the Leave Application.  In the supporting Affirmation, the Applicant mainly criticized the Board’s reliance of the various reports.

6.  I have considered the Board’s Decision in details.  I do not find any error of law, procedural unfairness or irrationality.  Neither has the Applicant been able to demonstrate any of the same.  There is nothing to indicate that the Board had failed to take into account any relevant matters.  The Board’s Decision was comprehensive with adequate reasons provided.  I do not accept the Applicant’s criticisms in the supporting Affirmation.  The Applicant has completely failed to indicate, let alone prove, which parts of the reports relied upon by the Board are allegedly incorrect and the basis of such assertion.  In any event, the Board, having referred to all the evidence, came to the conclusion that the Applicant was not a credible witness and that no reliance can be placed on any of his evidence (paragraph 69 of the Board’s Decision).  The Board further concluded that there is no credible evidence that the Applicant would be at real risk of harm if he returns to Bangladesh (paragraph 87 of the Board’s Decision).  The Board was entitled to make such findings based on the evidence.  I see no errors in the Board’s Decision.  The Board’s Decision satisfies the enhanced Wednesbury test and is not Wednesbury unreasonable or irrational.  I am not satisfied that the Applicant’s intended challenge of the Board’s Decision is reasonably arguable with any realistic prospects of success.

7.  Leave application of this sort is meant to be a filtering process and I am not expected to give elaborated reasons for my decision (see Re Zunariyah [2018] HKCA 14, at §23).  Suffice for me to state that in reaching the decision, I have considered all the relevant documents before me, as well as the grounds advanced by the Applicant.

8.  In the premises, I would have dismissed the Leave Application anyway even if the Applicant did not indicate that he wants to withdraw the application.  In light of what I have stated above and what the Applicant indicated at the hearing, the proper course to adopt is to dismiss the Leave Application.  (See Manik MD Mahamudun Nabi [2022] HKCA 471, at §19)

Conclusion

9.  In the premises, I make an order that 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

[1]https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003771_2019_files/the_Board's_Decision.pdf