MD REZWAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1538/2025

[2026] HKCFI 2332

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1538 of 2025

Application for Leave to Apply for Judicial Review

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

Following:

1.   There shall be no extension of time be granted to the applicant to file the Leave Application out of time.

2.   The applicant’s application for leave to apply for judicial review be 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 4 July 2025, 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 17 October 2024 (“Board’s Decision”) dismissing the applicant’s appeal against the decision of the Director of Immigration (“Director”) dated 9 August 2024 rejecting the applicant’s non-refoulement claim based on all applicable grounds[1]. The Board’s Decision is set out in the following hyperlink: -

  https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2025/HCAL001538_2025_files/the_Board's_Decision.pdf

2.  The basis of the applicant’s claim was that, if refouled to India, he would be harmed or killed by 3 men (“Enemies”) in connection with his jeans and shirts selling business.  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.

3.  The applicant has not requested for an oral hearing.  On 4 August 2025, the applicant filed an affirmation applying for the withdrawal of the Leave Application because his life at home would be safe.  On 26 September 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 in his letter submitted on 25 August 2025 stated that he would like to withdraw the Leave Application.  In the circumstances, this court will dispose of the Leave Application on paper.

Discussion

4.  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.

5.  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 provided no such grounds.

6.  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, whilst the Board found that the applicant’s account of events was credible, it nonetheless found that the applicant’s past ill-treatment did not meet the requisite level of severity.  It found that none of the Enemies had any intention to seriously harm or kill him.  The past ill-treatment was also found to have failed to meet the requisite level of severity.  The Board concluded that the applicant would not face a real risk of serious harm if refouled.  It further found that state protection and internal relocation would be reasonably available.  These are findings of fact, which the court in a judicial review will not interfere with subject to there being any public law errors.

7.  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[5].

8.  Another matter I need to consider is the delay.  Pursuant to O 53 r 4(1) of the Rules of the High Court, an application to apply for judicial review shall be made promptly and in any event within 3 months from the date when grounds for the application first arose.  The applicant was late for almost 6 months.  The applicant provided no reason at all to explain for the delay.  In the circumstances, I declined to grant an extension of time to the applicant for the delay.

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.

Removal of the applicant

10.  On 27 November 2025, before the applicant was removed, he signed a standard from letter to the court, stating that he “chose not to provide any correspondence address for communication with the court and service of court documents.”

Orders

11.  There shall be no extension of time be granted to the applicant to file the Leave Application out of time.

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