MUSHTAQ ABDUL RAHEEM v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 206/2021

[2026] HKCFI 3208

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 206 of 2021

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

1.   Application to withdraw the application for leave to apply for Judicial Review (“Form 86”) be refused; and

2.   Application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

Introduction

1.   This is the Applicant’s application by Form 86 filed on 23 February 2021 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dismissing his appeal against the decision of the Director of Immigration refusing his application for non-refoulement protection (the “Decision”).

Discussion and conclusion

2.   On 4 May 2026, the Applicant applied by affirmation to withdraw his leave application (the “withdrawal application”).  To ensure that the withdrawal is valid and properly made, the Applicant was given directions by letter dated 13 May 2026 (the “directions letter”) to file an affirmation or a statement confirming:

(a)   that it is now safe for him to return to his home country;

(b)   that his application to withdraw the leave application (the “withdrawal application”) is made out of his own free will;

(c)   that he understands that if his withdrawal application is approved, the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (the “Board”) dismissing his appeal against the decision of the Director of Immigration in the Notice of Decision remains in force; and he may not make further application for leave to apply for judicial review of the Board’s decision; and

(d)   that he understands that his dependent visa does not entitle him to non-refoulement protection in Hong Kong.

He was also advised that if no affirmation or statement shall have been filed as required, his withdrawal application will be refused and the leave application may be dismissed for want of prosecution unless he informs the Court of his intention to proceed with the leave application within 14 days of the directions letter.

3.  Fourteen days have lapsed since the date of the directions.  As at the date of this Form CALL-1 the Applicant has not filed any affirmation or statement or responded.  In the light of the Court’s directions, the Applicant must understand that if he does not respond, his withdrawal application may be refused and his leave application may be determined or dismissed for want of prosecution.  His withdrawal application also evinces a lack of intention to prosecute his leave application. 

4.  Having considered the nature and grounds of the application, the issues raised, the Decision, the papers, the applicable legal principles and all the circumstances, the Court considered that the leave application may be justly determined on paper without an oral hearing.  Having also rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that there is no apparent errors of law or procedural unfairness in the Decision or in the making of the Decision.  The Decision is not Wednesbury unreasonable or irrational.  The Court therefore considered it appropriate to refuse his withdrawal application and dismiss his leave application for want of prosecution.

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