KHATUN MST MASUMA v. TORTURE CLAIMS APPEAL BOARD

HCAL 44/2023

[2025] HKCFI 2411

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 44 OF 2023

Application for leave to apply for judicial review
NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

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

1.   On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board”, “Director of Immigration” be added as the putative interested party and the decision in respect of which relief is sought be amended to “Torture Claims Appeal Board’s decision dated 6 January 2023”.

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

3.   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 12 January 2023, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of a decision “by (FISHER, Paul Stephen) 6 January 2023”.

2.  In relation to the applicant’s claim for non-refoulement protection, the Torture Claims Appeal Board ("the Board") made only one decision on 6 January 2023 (“the Board's Decision”).  It is clear that the applicant must be referring to 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/2023/HCAL000044_2023_files/the_Board's_Decision.pdf

3.  The Board found that the applicant’s claims for non-refoulement protection were not made out on any of the applicable grounds under the Unified Screening Mechanism (“the USM”).  Hence, the Board confirmed the decision of the Director of Immigration (“the Director”) dated 3 July 2020 (“the Director’s Decision”).

Amendments

4.  The applicant wrongly named the Board and the Director as the putative respondents and did not name any putative interested party in Form 86, when only the Board should be the putative respondent and the Director should be the putative interested party.  This court therefore makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board” and add “Director of Immigration” as the putative interested party.

5.  As aforesaid, the applicant should be applying for leave in respect of the Board’s Decision.  Hence, on this court’s own motion, the decision in respect of which relief is sought is amended to “Torture Claims Appeal Board’s decision dated 6 January 2023”.

The applicant’s case

6.  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.

7.  In sum, the applicant claimed for non-refoulement protection because she feared being harmed or even killed by her paternal uncle named Gafur and his associates in the Awami League (“AL”) on account of a dispute Gafur had with her father over some jointly held property as well as by a loan shark named Haque over an unpaid debt, if she were refouled to Bangladesh.    

Withdrawal of the Leave Application

8.  By her latest affirmation dated and filed on 14 January 2025, the applicant made an ex parte application for leave to withdraw the Leave Application.  The applicant stated in the affirmation that she wanted to withdraw her application for judicial review because all her problems had been solved in her home country and she wanted to go back as soon as possible.

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

10.  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.”

11.  Thus, it is just 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

12.  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).

13.  The applicant did not provide any ground for the intended judicial review in Form 86, nor in her supporting affirmation dated 12 January 2023.  The applicant merely stated in the affirmation that she would like to request to set aside the Director’s Decision, as they disregarded the danger and threat that she would face in her home country should she be deported.

Discussion

14.  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).

15.  First of all, only the Board’s Decision is reviewable by judicial process and not the Director’s Decision, as the Director’s Decision was superseded by the Board’s Decision and is no longer susceptible to judicial review (see Re Moshsin Ali, [2018] HKCA 549).  Thus, this court will only deal with the Leave Application in respect of the Board’s Decision.

16.  Despite the fact that the applicant did not advance any ground for the intended judicial review, this court will scrutinize the Board’s Decision for any errors of law, procedural unfairness or irrationality as aforesaid.

17.  In assessing the applicant’s appeal/petition, the Board held an oral hearing on 27 August 2021.  The purpose was to allow the applicant to have a chance to present her case and grounds of appeal to the Board in person so that the Board could conduct a proper inquiry and better understand her situation. 

18.  The Board found that the applicant’s conduct casted serious doubts as to whether she had at any time actually held a subjective fear of being harmed on her return to Bangladesh.  First, she returned to Bangladesh in 2014 after her contract was prematurely terminated in Hong Kong, despite her knowledge that her father had been hospitalized as a result of an acid attack and the threat uttered by Gafur.  Second, she waited three and a half years after her last visa expired in Hong Kong before raising her non-refoulement claims.  Third, having been kidnapped from her workplace and then held incommunicado for some time, she did not insist on contacting her parents to let them know she was safe and she had not bothered to notify her employer about her situation when she had the opportunity to do so.   

19.  In respect of the claimed threats from Gafur, it was the applicant’s account that Gafur and his people had captured the disputed land.  In this connection, the Board found that the applicant failed to explain why Gafur would continue to have any adverse interest in her, and that her attempts to refute this point were unpersuasive.  At the oral hearing, the applicant introduced a number of novel details never previously raised in her claims and evidence. The Board however found such information to be contradictory to her previous evidence.

20.  The Board also had serious doubts about whether the applicant ever borrowed money from Haque, as she gave quite inconsistent evidence about the circumstances under which she was said to have obtained the loan.  Likewise, the Board found that the applicant’s evidence about the damage or loss of the loan agreement to be unclear and inconsistent.  In any event, there was no evidence to suggest that Haque had ever harmed either her parents or her lover named Prashanta in order to try to recoup the outstanding money from them. Thus, the Board considered her claim that Haque would harm her for that purpose to be speculative and not supported by objective evidence. 

21.  In addition, the Board rejected the applicant’s claims that Prashanta, Gafur and Haque had joined forces to harm the applicant and that she would be threatened, targeted and harmed for reason of her actual or imputed Hinduism. The Board regarded such claims as fanciful and exaggerated. 

22.  Thus, the Board did deal with the applicant’s alleged danger in the Board’s Decision, but found no reliable evidence to support the applicant’s allegations.  The Board therefore concluded that the applicant was not entitled to non-refoulement protection on any of the applicable grounds under the USM. 

23.  The Board did not consider availability of state protection and viability of internal relocation.  However, as the applicant’s claims and the matters giving rise to her claims for non-refoulement protection was rejected in its entirety, it is therefore not necessary for the Board to consider the availability of state protection.

24.  As to internal relocation, it is a well-recognised principle that the decision-maker only needs to consider internal relocation if the applicant has established that she qualifies as a refugee pursuant to Article 1A(2) of the Refugee Convention (see Robinson v SSHD & Anor [1997] EWCA Civ 3090, dated 11.7.1997).  In other words, internal relocation only arises if the applicant has established a real risk of persecution in her home area (see Gardi v SSHD [2002] 1 WLR 2755).

25.  As it is the Board’s finding that the applicant had no real risk of any of the proscribed forms of harm, it is not necessary for the Board to consider internal relocation.

26.  The assessment of evidence and risk of harm are primarily within the realm of the Board.  This court finds no errors of the Board in reaching its decision based on all the evidence before it.  In fact, in view of the applicant’s latest affirmation confirming that her problems in her home country had been solved, there is absolutely no ground for her to make any non-refoulement claim and there is no prospect of success in the applicant’s intended application for judicial review at all.

27.  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 error 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. 

28.  In Po Fun Chan v Winnie Cheung & Another(2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be a reasonably arguable claim which enjoyed realistic prospects of success.  It is the view of this court that the applicant has failed to establish such a claim and hence leave must be refused.

Conclusion

29.  For reasons aforesaid, the application for leave to withdraw the Leave Application is refused and the Leave Application is 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