MINTU v. TORTURE CLAIMS APPEAL BOARD

HCAL 2125/2020

[2025] HKCFI 5535

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2125 OF 2020

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

1.  The applicant’s application to withdraw the application for leave to apply for judicial review be refused.

2.  The applicant’s application for leave to apply for judicial review be dismissed.

Observations for the applicant:

The Leave Application

1.  By way of Form 86 dated and filed on 23 October 2020, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board (“the Board”) dated 16 July 2020 (“the Board’s Decision”).  The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL002125_2020_files/the_Board's_Decision.pdf

2.  The Board found that the applicant had failed to show that he was entitled to non-refoulement protection in Hong Kong on any of the applicable grounds under the Unified Screening Mechanism (“the USM”).  Hence, the Board dismissed the applicant’s appeal/petition and confirmed the decision of the Director of Immigration (“the Director”) dated 16 July 2018.

The applicant’s case

3.  It is not necessary for this court to repeat the details of the applicant’s case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above.

4.  In sum, the applicant claimed for non-refoulement protection because if refouled to Bangladesh, he being a member of the Jamate Islami Party (“JIP”) might be imprisoned, punished, tortured or even executed due to his political connection as the Awami League Party (“AL”) was still the ruling party.

Late application

5.  By virtue of Order 53, rule 4(1) of the Rules of the High Court, Cap 4A, the applicant had to make the Leave Application within 3 months when the grounds for the Leave Application first arose, ie when the Board’s Decision was made.

6.  However, the applicant filed Form 86 on 23 October 2020, which was 3 months and 7 days after the Board’s Decision (made on 16 July 2020).  The applicant was hence late for 7 days in making the Leave Application, and this court has to consider whether there is any good reason to extend the time for the applicant to make the Leave Application.

7.  As held in AW v Director of Immigration [2016] 2 HKC 393, the criteria for granting an extension of time are:

(i)  the length of the delay;

(ii)  the reason for the delay;

(iii)  the merits of the intended application; and

(iv)  any prejudice to the putative respondent and to public administration.

8.  The applicant did not make any application for extension of time and provided no explanation for the delay in making the Leave Application.  At the oral hearing before this court on 16 September 2025, the applicant did not explain the delay but applied for withdrawal of the Leave Application instead.

9.  Thus, this court is not prepared to grant any extension of time to the applicant to file the Leave Application, even if an application for extension of time was made.  The Leave Application can therefore be dismissed on the ground of being made out of time alone.

Oral hearing and withdrawal of the Leave Application

10.  At the oral hearing before this court on 16 September 2025, the applicant applied to withdraw the Leave Application.  He said that he did not have any problem in his country and he could go back to his country safely.

11.  There is no evidence to show that the applicant made the above withdrawal application other than out of his own volition.  With the withdrawal application, it is clear that the applicant no longer wishes to proceed with the Leave Application.

12.  However, the Court of Appeal had held in Re Manik Md Mahamudun Nabi [2022] HKCA 471 that:-

“The applicant on his own motion applied to the Court to withdraw his application for leave to apply for judicial review. The Judge acceded to his application, whereupon there was nothing outstanding in the action. The Judge was correct to conclude the action by ordering a dismissal of the application instead of leaving the action at large.”

13.  Thus, it is not right to leave the action at large by granting leave to withdraw to the applicant.  This court will proceed to determine the merits of the Leave Application.

Grounds for judicial review

14.  The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).

15.  The applicant did not advance any ground for the intended judicial review in Form 86, nor in his supporting affirmation dated 23 October 2020.  He merely stated in the affirmation that he did not agree with the Board’s Decision.

Discussion

16.  The role of the court in judicial review is not to re-assess the non-refoulement claims afresh.  The primary decision-makers in a claim for non-refoulement are the Director and the Board.  They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  The court will scrutinize the Board’s decision and intervene by way of judicial review only for errors of law, procedural unfairness, or irrationality (see Nupur Mst v Director of Immigration [2018] HKCA 524).

17.  Thus, despite the fact that the applicant did not advance any valid ground for the intended judicial review, this court will scrutinize the Board’s Decision for any errors of law, procedural unfairness or irrationality.

18.  The applicant was afforded an oral hearing before the Board on 19 September 2019 and the applicant was present.  Thus, the applicant did have the opportunity to present his case to the Board in person.

19.  As can be seen from the Board’s Decision, the Board accepted on the balance of probabilities that the applicant’s account of events was credible.

20.  However, the Board was not convinced that AL would mobilise members to kill the applicant, who was only an ordinary JIP member who posed minimal to nil threat to AL.   Evidence showed that if the AL members really had wanted to kill the applicant, they could have easily done so in the few occasions that they had encountered the applicant.

21.  Having considered country of origin information (“COI”) and the totality of evidence given by the applicant, the Board was satisfied that meaningful state protection would be available to the applicant.  Moreover, even if the applicant had shown that he would face a real risk of harm if refouled to Bangladesh, the Board considered that there were alternative places in Bangladesh where the applicant could reasonably relocate without undue hardship to avoid the alleged risk of violence or threats from AL members.

22.  The Board also considered each of the applicable grounds under the USM separately and found that the applicant failed to establish any of them.

23.  The assessment of evidence, COI and risk of harm was primarily within the realm of the Board.  The Board was entitled to make its own decision.  This court finds nothing wrong or unreasonable in the way the Board reached its decision. 

24.  Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM, the burden of proof and the standard of proof.  The Board also correctly identified the issues and observed a very high standard of fairness.  This court could detect no errors of law, procedural unfairness or irrationality in the Board’s Decision. The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision.

25.  Thus, there is no merits in the Leave Application at all.

26.  Moreover, as the applicant had confirmed that it would be safe for him to return to his home country, it is clear that he no longer needs non-refoulement protection and the Leave Application serves no practical purpose.

27.  It is well established that the court may exercise discretion not to grant a remedy on judicial review if it would serve no practical purpose, where it may have become otiose or pointless to grant a remedy because the relevant detriment to the applicant has been removed (see AW v Director of Immigration and William Lam, CACV 63 of 2015).

28.  Even assuming that there were errors of law, procedural unfairness, or irrationality in the Board’s Decision and the case were remitted to the Board for reconsideration, there would simply be no more basis for the applicant to claim non-refoulement protection as it was no longer unsafe for him to return to his own country.  The Board should assess the risk of the applicant at the time of the proceedings, taking account of information that has come to light to ensure that it is able to make a “full and up-to-date assessment” of the current situation (see Ubamaka Edward Wilson v Secretary for Security and Another (2012) 15 HKCFAR 743).

29.  It is therefore otiose and pointless to grant leave to the applicant to proceed with the intended judicial review.

30.  As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, for the court to grant leave to apply for judicial review, the claim has to be a reasonably arguable claim which enjoys realistic prospects of success.  It is the view of this court that the intended judicial review has no realistic prospects of success at all, and hence the Leave Application must be dismissed.

Conclusion

31.  For reasons aforesaid, the application to withdraw the Leave Application is refused and the Leave Application is dismissed for being made out of time and devoid of merits.

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