MOHAMED ANWER THAMEEM v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 3430/2019

[2025] HKCFI 5397

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 3430 of 2019

 Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

	consideration of the documents only;            or
	consideration of the documents and oral submissions by the Applicant in open court;

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 application for leave to apply for judicial review out of time.

3.  The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

Introduction

1.  By a “Notice of application for leave to apply for judicial review” in the prescribed Form 86 filed on 19 November 2019, 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 5 August 2019 (“Board’s Decision”) dismissing the applicant's appeal against the decision of the Director of Immigration (“Director”) dated 23 August 2018 (“Director’s Decision”) rejecting the applicant's non-refoulement claim on all applicable grounds except  the risk torture ground which had been previously dismissed by the Director on 27 September 2013.  The Board’s Decision can be viewed at the following hyperlink: -

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003430_2019_files/the_Board's_Decision.pdf

2.  In the Form 86, the applicant named the Board and the Immigration Department as the proposed respondents and the Board as the interested party.  As the Board should have been the proper proposed 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, if refouled to Sri Lanka, he would be harmed or killed by (i) Azad from the United National National Party (“UNP”); (ii) the loan shark and his son for the unpaid loans; (iii) the applicant’s wife after the applicant had an affair with another woman in Hong Kong; and (iv) a Buddhist group.  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 16 August 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.  The Form 86 contained no grounds and the assertions in applicant’s supporting affirmation were confusing.  Briefly stated, the applicant averred that the Board’s Decision was unfair and unreasonable in relation to the matters on COI, the availability of state protection and internal relocation.

7.  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 said that he could not return home, as he had to deal with the matters concerning his two children in Hong Kong.  His 21 years old son had recently married to a Hong Kong citizen.  His partner and their daughter had made a similar leave application in a separate application, and were waiting for the outcome of the decision.

8.  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 gave the applicant a benefit of doubt by finding that the applicant was mostly a reliable witness and his evidence was mostly consistent despite some irregularities.  Regarding the applicant’s claimed fear of harm from Azad and the loan shark, the Board found that there were no substantial grounds to believe that he was at real risk of harm through the effluxion of time and that the threats were vague.  In relation to the fear from the Buddhist terrorist group, the Board found that the applicant, as a non‑practising Muslim, any risk of attacks would be substantially reduced.  The Board was only prepared to accept that there was a real risk that the applicant would suffer mistreatment from the family of his wife that would constitute CIDTP.  The Board however found that the reasonable viability of internal relocation would remove any possible risk of harm the applicant would be subjected to.  These are findings of fact, which the court in a judicial review will not interfere with, subject to there being any public law errors.

9.  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 reach the conclusion that the applicant would unlikely face risk of harm after found the reasonable viability of internal relocation and the influx of time.  The applicant’s grounds set out in the supporting affirmation were vague and do not condescend to particulars.  Neither was he able to provide 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].

Whether to extend time for the late application

10.  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 about 2 weeks, which cannot be described as substantial.

11.  In his explanation for the delay, the applicant stated that the delay was caused by the difficulty of finding someone to translate the Board’s Decision to him.  Given the relatively short delay, I accept the applicant’s explanation for the delay.  However, since the court has found that there is no good prospect of success in his intended challenge, I refuse to exercise my discretion to allow an extension of time for the applicant to file the Leave Application.

Orders

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

13.  There shall be no extension of time for the applicant to file the application for leave to apply for judicial review out of time.

14.  The 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