KHATUN MST MORZINA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 3487/2019

[2025] HKCFI 3325

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3487 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.  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 25 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 20 November 2019 (“Board’s Decision”) dismissing the applicant's appeal against a decision of the Director of Immigration (“Director”) dated 14 November 2018. (“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/2019/HCAL003487_2019_files/the_Board's_Decision.pdf

2.  In her Form 86, the applicant named the Director and the Board as the proposed respondents and did not name any interested party. As the Board should have been the proper respondent and the applicant the interested party, the Form 86 will be amended accordingly on the court’s own motion.

3.  The basis of the applicant’s claim is that she would be harmed or killed by her cousin, who was a leader of the Awami League. 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 schedules a hearing on 16 July 2025, which the applicant attended in person. After having heard from her, this court informed her that the decision would be reserved, and be sent to her updated address.

Discussion

5.  A 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 the grounds set out in her supporting affirmation are mostly in relation to the Director’s Decision. For those concerning the Board’s Decision, the applicant stated that :

(a)  The Board’s Decision was unreasonable and unfair;

(b)  The Board had failed to give her sufficient time and chance to arrange relevant evidence to her non-refoulement claim. There was insufficient importance or weight given to state acquiescence

8.  At the hearing, this court asked the applicant whether she had any further grounds she wished to submit in support of the Leave Application. At first, the applicant was trying to repeat the evidence she had provided before the Board. When the court asked her whether she wished to rely on the same written grounds she had provided, the applicant stated that the Immigration Department was fair to everyone except to her. She asked not to be put under detention.

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, whilst the Board was prepared to accept that the applicant’ account that her cousin had previously harassed her (which harassment included pulling at her clothes and hands, and threatening to kill her if she did not marry him), the Board however did not accept her assertions that her cousin attempted to rape her some 30 to 40 times. The Board also found doubts on the credibility of other aspects of her claims including the alleged murder of her husband by the cousin and the framing up of her father for the alleged murder. Having regard to the fact that the only incident in which she claimed she was harmed by her cousin occurred some 11 years before she left Bangladesh, the Board found that there was no real risk that she would be seriously harmed or killed by her cousin. 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 find that the applicant would not subjected to real risk of harm owing to the passage of time of past events concerning the cousin. The applicant’s written grounds are vague and do not condescend to particulars. Neither was the applicant able to provide any grounds at the oral hearing to challenge the Board’s Decision. 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].

Orders

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

12  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