HERDIANA ANANG v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1427/2024

[2026] HKCFI 3195

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1427 of 2024

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

Background

1.  By a “Notice of application for leave to apply for judicial review” in the prescribed Form 86 filed on 26 August 2024, 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 30 July 2024 (“Board’s Decision”) dismissing the applicant’s appeal against a decision of the Director of Immigration (“Director”) dated 18 October 2023 rejecting the applicant’s non-refoulement claim based on all applicable grounds[1] after the applicant having been allowed to make a subsequent claim.  The Board’s Decision is set out in the following hyperlink: -

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2024/HCAL001427_2024_files/the_Board's_Decision.pdf

2.  In the Form 86, the applicant named the Board as the interested party in addition to it having been named as the proposed respondent.  As the Director should have been the proper putative interested party, the Form 86 shall be amended accordingly on the court’s own motion.

3.  The basis of the applicant’s claim was that, if refouled to Pakistan, he would be harmed or killed by the brothers of his wife due to the applicant’s extra-marital affairs.  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 10 March 2026, the applicant filed an affirmation requesting to “cancel” the Leave Application.  On 27 April, 2026, the Removal Assessment and Litigation (Removal and Deportation) Section (1) of the Immigration Department separately faxed a letter to the court, informing the court that the applicant would like to withdraw his judicial review application.  Enclosed with the said letter was the applicant’s signed memo in his native language as well as in English dated 16 March 2026.  In the memo, the applicant stated that he would like to withdraw the Leave Application as his issues in his home country had been resolved.  In the circumstances, this court will dispose of the Leave Application on paper.

Discussion

5.  A leave application operates as a ‘filtering’ process.  Hence, there is no requirement or expectation to give elaborate reasons for my decision[2]. It is therefore 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[3], 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 contained 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.[4] In the present case, the Board found that the applicant’s case was consistent.  Although the Board accepted that the applicant had been assaulted by his brothers-in-law due to his extra marital affair before he left for Hong Kong, it nonetheless found that the threats from the brothers-in-law were not genuine.  In any event, the Board found that the past ill-treatment failed to meet the requisite level of severity.  It 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 provided no grounds at all in support of the Leave Application.  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[5].

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.

Orders

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

11.  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