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HCAL 2040/2020
[2025] HKCFI 4142
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2040 of 2020
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Azahar Hossain Bhuiyan |
Applicant |
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and
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Non-Refoulement Claims Petition Office
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Putative Respondent |
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and
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Director of Immigration
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Putative Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)
Following:
Order by Deputy High Court Judge Levy:
1. The Form 86 be amended on the court’s own motion.
2. There shall be no extension of time for the applicant to file the Leave Application out of time.
3. 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 9 October 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 28 October 2016 (“Board’s Decision”) dismissing the applicant’s appeal against a decision of the Director of Immigration (“Director”) dated 18 November 2014 rejecting the applicant’s non-refoulement claim based on all applicable grounds apart from the ground of BOR 2 risk under Art. 2 of the Hong Kong Bill of Right. The Board’s Decision is set out in the following hyperlink: -
https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL002040_2020_files/the_Board's_Decision.pdf
2. In the Form 86, the applicant did not name any interested party. As the Director should have been the proper 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 he would be harmed or killed by members of the Bangladesh Nationalist Party as they held grudges against his active participation in the Awami League party, a rival political party. 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 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 hand‑written letter dated 6 May 2025 written in both the Bengali and English languages, stating that he would like to withdraw the Leave Application as he wanted to go back home as soon as possible. He stated that his problems had been solved. 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 making some vague allegations against the Director in the supporting affirmation, the applicant provided no such grounds in either the Form 86 or the supporting affirmation.
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, the Board determined the applicant’s appeal solely on the available information as the applicant was absent from the hearing scheduled before the Board. After having considered the COI, the Board concluded that the applicant would not personally face a risk of harm. 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].
Whether to extend time for the delay
9. Additionally, the Leave Application was filed out of time. There is a delay of about 4 years, which is extremely lengthy. In the absence of any explanation for the delay, the court will refuse to exercise its discretion to allow the Leave Application to be filed out of time.
Withdrawal application
10. 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
11. The Form 86 be amended on the court’s own motion.
12. There shall be no extension of time for the applicant to file the Leave Application out of time.
13. The applicant’s application for leave to apply for judicial review dismissed.
Dated the 12th day of September 2025
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( Alfred Chan )
for Registrar, High Court |
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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant
on 12/9/2025
Azahar Hossain Bhuiyan
Applicant’s ref. no:
Nil.
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 12/9/2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.: USM 509/14/12/2/B90
Director of Immigration
Putative Interested Party’s ref. no.: RBCZ 9001473/16, QA T/C 417/08 Pt.2 (Formerly RBCZ 118/08 Pt.2)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
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