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

HCAL 1045/2021

[2025] HKCFI 4145

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1045 of 2021

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 dismissed.

Observations for the Applicant:

Background

1.  By a “Notice of application for leave to apply for judicial review” in the prescribed Form 86 filed on 23 July 2021, 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 8 July 2021 (“Board’s Decision”) dismissing the applicant’s appeal against the decisions of the Director of Immigration (“Director”) respectively dated 12 May 2016 and 26 May 2017  rejecting the applicant’s non-refoulement claim 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/2021/HCAL001045_2021_files/the_Board's_Decision.pdf

2.  In the Form 86, the application named the Director and the “Adjudicator” of the Board as the proposed respondents and the Board as the 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.  The basis of the applicant’s claim was that he would be harmed or killed by the Taliban as the applicant refused to join them. 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.

4.  The applicant has requested for an oral hearing. On 6 February 2025, the applicant filed an affirmation applying for the withdrawal of the Leave Application, stating that his problem in Afghanistan had been solved. On 22 May 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 applicant would like to withdraw the Leave Application. Enclosed with the said letter was the applicant’s signed letter dated 9 May 2025 in English confirming his withdrawal of the Leave Application and his intention of wanting to go home.  In the circumstances, this court will dispose of the Leave Application on paper.

Discussion

5.  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.

6.  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. Apart from alluding to some convoluted evidence in the Board’s Decision in the supporting affirmation, the applicant’s Form 86 and the supporting affirmation provided no such grounds.  

7.  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, after having considered the applicant’s claims individually and cumulatively as well as his personal circumstances, the Board did not consider the applicant would face a real risk of harm from the Taliban if he were refouled and found that the applicant had invented the core of the factual basis of his claim for non-refoulement protection. Thus, the Board was not persuaded that there was a real risk of harm. The Board further found that internal relocation would be reasonably viable. These are findings of fact, which the court in a judicial review will not interfere with subject to there being any public law errors.

8.  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 applicant has 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 applicant’s 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

9.  Apart from the application to withdraw the Leave Application referred to above, there is nothing outstanding in this action.  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

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

11.  The applicant’s application for leave to apply for judicial review 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