MOHAMMAD AKRAM 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 Form 86 be amended on the court’s own motion.

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

Observations for the Applicant:

Introduction

1.  By a “Notice of application to apply for leave for judicial review” in the prescribed Form 86 filed on 6 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 30 October 2020 (“Board’s Decision”) dismissing the applicant's appeal against a decision of the Director of Immigration (“Director”) dated 7 March 2019 (“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/HCAL002225_2020_files/the_Board's_Decision.pdf

2.  In the Form 86, the applicant named the Director and the Adjudicator of Board as the proposed respondents and did not name any 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 a wealthy and influential man called Gautam because the applicant’s inability to repay 1.5 million rupees to Gautam he lost on the bets he placed on behalf of Gautam on the India Premier League Cricket Competition. 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.

4.  At the applicant’s request for a hearing of the Leave Application, this court scheduled a hearing on 11 September 2025. The applicant attended the hearing in person. After having heard from him, this court informed him that the decision would be reserved, and be sent to his updated address.

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.

7.  In his Form 86, most of the grounds were the applicant’s complaints against the Director and the Director’s Decision, which are therefore irrelevant. As for those concern the Board’s Decision, the applicant stated that the Board’s Decision was wrong, procedurally improper and unfair by placing too much reliance on the COI without taking into consideration the applicant’s personal background and experience. He also stated that it was unreasonable for the Board to require the applicant to respond to questions that he was not in a position to explain, and that it had failed to take into account the nexus of political parties and official corruption in his country. The applicant provided no elaboration of the grounds in his supporting affirmation.

8.  At the hearing, this court asked the applicant whether he had any grounds he wished to submit in support of the Leave Application. The applicant stated that he still had problems back home and wanted to stay in Hong Kong as long as possible.

9.  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, in assessing the applicant’s credibility, the Board only accepted his assertion that he was a punter in his hometown and that he had some money dispute with Gautam. However, the Board rejected the centrepiece of the applicant’s evidence in relation to the 4 incidents of assaults and threats. In any event, the Board found that the injuries the applicant reported of having allegedly suffered were minor that did not meet the requisite level of severity. The Board concluded that state protection and internal relocation would be available. The Board therefore found that the applicant failed to prove that there were genuine and substantial risks of harm if refouled. These are findings of fact, which the court in a judicial review will not interfere with, subject to there being any public law errors.

10.  Bearing in mind the enhanced standard that should be adopted in scrutinizing the Board’s Decision, this court is satisfied that the Board correctly applied the law relating to all the grounds and observed a high standard of fairness. I am satisfied that the Board was entitled to reject the applicant’s centerpiece of evidence based on the evidence before the Board. The applicant’s only written grounds contained in the Form 86 are either irrelevant or lack particulars. Neither was the applicant able to advance any valid grounds at the hearing. 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].

Order

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

12.  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