IMAM HOSSAIN KHAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 185/2020

[2025] HKCFI 1836

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 185 of 2020

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 the Applicant being absent in open court

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

Observations for the Applicant:

Introduction

1.  By Form 86 dated 17 January 2020, the Applicant applies for leave to apply for judicial review (“the Leave Application”) of the decision of the Torture Claims Appeal Board/ Non-refoulement Claims Petition Office (“the Board”) dated 2 January 2020 (“the Board’s Decision”) confirming the decision of the Director of Immigration (“the Director”) dated 15 January 2019 (“the Director’s Decision”), which rejected his non-refoulement claim on all applicable grounds under the Unified Screening Mechanism (USM) other than Torture Risk.

Background

2.  The Applicant’s personal background, the incidents alleged in support of his claim that he would be harmed or killed by the people of Bangladesh National Party (BNP) in Bangladesh, and the immigration and procedural history, etc. have been set out comprehensively in the Board’s Decision. It is unnecessary to repeat them all over again. For completeness’ sake, reference can be made to the Board’s Decision, the hyperlink to which is included below[1]. Unless otherwise specified, the Board’s abbreviations and descriptions are adopted herein.

Discussion

3.  The Applicant is absent from the oral hearing. I have proceeded to consider the merits of his present leave application (see Re Abdus Salam [2019] HKCA 1091). In view of the seriousness of the issues at hand, I have reminded myself to rigorously examine and anxiously scrutinize the Board’s Decision, applying an enhanced standard as required by law (see Nupur Mst v Director of Immigration [2018] HKCA 524 at §14).

4.  I am not satisfied that the Applicant’s intended challenge of the Board’s Decision, based on any of the grounds below, is reasonably arguable with any realistic prospects of success (see Peter Po Fun Chan v Winnie Cheung & Another (2007) 10 HKCFAR 676):

(1)  “The Respondent had unlawfully fettered his discretion by refusing the applicant’s appeal on the grounds that they did not satisfy the requirement.”

(2)  “The Adjudicator acted in a procedurally unfair manner in dealing with the Applicant’s appeal.”

(3)  “The Respondent’s decisions to refuse the Applicant’s appeal were unreasonable or irrational in the public law sense or are a result of procedural errors or unfairness.”

(4)  “The Respondent failed to meet the greater care and duty owed to a self­represented claimant.”

(5)  “The Applicant believes he was not given a fair opportunity to keep forward his submissions in an oral hearing nor he was invited to submit written submissions. When the Applicant filled in the Appeal Form, the Applicant was only asked to write grounds for appeal but that will not count as an opportunity to reply to submissions made by the representatives of the Director of Immigration.”

(6)  “Furthermore, the Torture Claims Appeal Board has significantly relied on the source of news which is not officially recognized or it is simply hearsay. They have also relied on some cases which are fairly outdated considering the dramatic changes. The lack of credible source of information has resulted in them making groundless speculations that it is safe for him to return back to his country of origin.”

5.  First of all, it is plain that the Applicant’s grounds are simply a blatant imitation of some pro forma templates, without any meaningful adaptation to the specific circumstances of his case.

6.  It is wholly inadequate for the Applicant to rely on vague and bare assertions. It is unequivocal that his grounds do not provide substantive details or specifics relevant to his case, nor do they explain how the decision of the Board or the Adjudicator was unreasonable or irrational. The Applicant has utterly failed to demonstrate how the Board allegedly fettered its discretion unlawfully or how the Adjudicator acted in a procedurally unfair manner. Moreover, the Applicant has not clearly identified the source of the news or the COI materials that are asserted to be unofficially recognized or were outdated.

7.  It is not true for the Applicant to claim that he was not given the opportunity to present his submissions at the oral hearing. As can be seen from the Board’s Decision, the Applicant was able to provide evidence and answer questions raised regarding his claim, with proper translation available before the Board. The Applicant chose to adopt the information from the Hearing Bundle in the TCF, during the CAT Interview, in the SCF, at the USM Interview, and in the NOA as evidence supporting his case. The Board then asked him questions and discussed his CAT Claim and the USM Claim under the Petition Grounds, and it also provided him with the opportunity to make submissions (see e.g. §§14, 28-29, 33-35, 38-39, etc. of the Board’s Decision).

8.  There is simply no evidence or basis to demonstrate that the Board had failed to accurately set out the burden and standard of proof, the law and key legal principles, assess the evidence, COI materials, risk of harm, state protection and viability of internal relocation, or uphold a very high standard of fairness.

9.  It has been reiterated time and again that the primary responsibility for assessing these matters lies with the Board. In the absence of any errors of law, procedural unfairness, or irrationality, the Court would not reopen the Board’s findings or make a determination on the case afresh. The role of the Court in a judicial review is not to provide a further avenue of appeal (see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524, etc.).

Conclusion

10.  For these reasons, I make an order that Form 86 be amended as described above and the Leave Application 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