SHANTA ALIMA AKTER AND OTHERS v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

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

Following:

1.  The applicants’ Form 86 be amended on the court’s own motion in terms of [2] and [3] in the Call-1 Form.

2.  The 1^st, 2^nd and 3^rd applicants’ application for leave to apply for judicial review be dismissed.

Observations for the Applicants:

Background

1.  By a “Notice of application for leave to apply for judicial review” in the prescribed Form 86 filed on 3 February 2023, the applicants 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 19 January 2023 (“Board’s Decision”) dismissing the applicant’s appeal against decision of the Director of Immigration (“Director”) dated 24 November 2021 rejecting the applicants’ non-refoulement claims based on all applicable grounds.  The Board’s Decision is set out in the following hyperlink: -

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2023/HCAL000154_2023_files/the_Board's_Decision.pdf

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

3.  The 1^st applicant is the mother of the 2^nd applicant and 3^rd applicant, minor daughters born in Hong Kong respectively on 15 November 2019 and 21 June 2021.  An application for judicial review by a child claimant should only proceed in accordance with the regime under O.80 r 2 of the Rules of the High Court with the appointment of next friend and acting by a solicitor (unless the Official Solicitor is appointed as next friend) : see Fabio Arlyn Timogan v Evan Ruth [2020] HKCA 971at [57].  Despite the non-compliance with the requirement, this court would treat the non-compliance with the rule as a mere irregularity, and proceed to consider the Leave Application: see Fabio (supra).  I however will order the amendment to the title of the Form 86 by the description of the 2^nd and 3^rd applicants respectively as:

A2: “Haque Tahrim Sabila suing by her mother and next friend, Shanta Alima Akter”

A3: “Haque Adnin Samreen suing by her mother and next friend, Shanta Alima Akter”

4.  The basis of the applicants’ claims were that, if refouled to Bangladesh, each of the applicants would be harmed or killed by (i) the parents of the 1^st applicant for the latter’s marriage to a man they disapproved and; (ii) the 1^st applicant’s creditors for an unpaid loan.  The 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.  The applicants have requested for an oral hearing.  On 22 August 2025, the Removal Assessment and Litigation (Removal and Deportation) Section (1) of the Immigration Department faxed a letter to the court, informing the court that the applicants would like to withdraw their judicial review application.  Enclosed with the said letter was a signed memo in a language believed to be Bangladeshi as well as in English dated 29 July 2025.  The memo was signed by the 1st applicant for herself as well as on behalf of the 2^nd and 3^rd applicants.  In the memo, the 1^st applicant stated that she and the 2^nd and 3rd applicants would like to withdraw the Leave Application as their issues at home had been resolved and they could return home.  In the circumstances, this court will dispose of the Leave Application on paper.

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 applicants’ Form 86 and the supporting affirmation provided no such grounds.

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 was aware of the requirement of assessing the appeals by the 2^nd and 3rd applicants separately.  After having considered the evidence of the 1^st applicant, the Board found that the applicants would not face any risk of harm either from the parents or the creditors of the 1^st applicant.  It found that the 1^st applicant had not contacted her parents for some time. The creditors had not harmed the 1^st applicant in the past, and that the injuries inflicted by the 1^st applicant’s father were minor.  Hence, the Board also found that the past ill-treatment by the 1^st applicant did not meet the requisite level of severity.  The Board further found that the state protection as well as internal relocation would be reasonably available to all 3 applicants.  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.  Bearing in mind the enhanced standard that should be adopted in scrutinizing the decision of the Board, this court is satisfied that the Board correctly applied the law relating to all the grounds and observed a very high standard of fairness.  The applicants have not shown any errors of law or procedural unfairness or irrationality in the Board’s Decision, nor were such grounds identified in the Form 86 or otherwise.  The applicants’ intended challenge to the Board’s Decision is not reasonably arguable with any realistic prospects of success such that would enable this court to grant leave[4].

Withdrawal application

10.  Apart from the application to withdraw the Leave Application referred to above, there is nothing outstanding in this action.  This court is satisfied that in the withdrawal application was made by the 1^st applicant for herself as well as on behalf of the 2^nd and 3^rd applicants.  In the circumstances, I make an order to dismiss the Leave Application, and hereby order the dismissal of the Leave Application: see Re Manik Md Mahamudun Nabi [2022] HKCA 471; Ngo Xuan Tuyen v Torture Claims Appeal Board [2024] HKCA 1140.

Order

11.  The applicants’ Form 86 be amended on the court’s own motion in terms of [2] and [3] above.

12.  The 1^st, 2^nd and 3^rd applicants’ 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