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HCAL 198/2020
[2025] HKCFI 1837
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 198 of 2020
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BETWEEN
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Alam Shahin |
Applicant |
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and |
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
Putative
Respondent |
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and |
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Director of Immigration |
Putative |
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Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following:
Order by Deputy High Court Judge (Non-refoulement Claims) Teresa Wu:
The application for leave to apply for judicial review be dismissed.
Observations for the Applicant:
Introduction
1. By Form 86 dated 20 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 20 December 2019 (“the Board’s Decision”) confirming the decision of the Director of Immigration (“the Director”) dated 22 November 2018 (“the Director’s Decision”), which rejected his non-refoulement claim on all applicable grounds under the Unified Screening Mechanism (USM).
Background
2. The Applicant’s personal background, the incidents alleged in support of his claim that he would be killed by members of the Awami League Party (AL) 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 requested by him. On the authority of Re Abdus Salam, CACV 125/2019 (judgment dated 3 October 2019) [2019] HKCA 1091, I proceed to deal with the Leave Application based on the materials placed before me.
4. In view of the seriousness of the issues at hand, I have reminded myself to apply an enhanced standard as required by law (see Nupur Mst v Director of Immigration [2018] HKCA 524 at §14). After rigorously examining and anxiously scrutinizing the Board’s Decision, I am satisfied that the Board had accurately set out the burden and standard of proof, the law and key legal principles, assessed the evidence, COI materials, risk of harm, state protection and viability of internal relocation, etc., and upheld a very high standard of fairness.
5. The Applicant has not identified any valid grounds for judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21/2015 (judgment dated 22 December 2016) at §142). In his supporting affirmation, he has merely exhibited copies of the Board’s Decision and the Hearing Bundle before the Board, without showing any procedural or other public law errors allegedly committed by the Board.
6. It is well-established that the Board was primarily responsible for assessing the evidence. As the materials provided by the Applicant do not demonstrate any basis or ground to challenge the legality, rationality, or fairness of the process below, the Court will not assume the role of the Board as the primary decision maker (see Re Zunariyah (supra); Re Qadir Sher [2018] HKCA 160; Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Lakhwinder Singh [2018] HKCA 246; Re Masoom Parvez [2018] HKCA 163; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst (supra), etc.).
7. I am not satisfied that the Applicant’s intended challenge of the Board’s Decision is reasonably arguable with any realistic prospects of success (see Peter Po Fun Chan v Winnie Cheung & Another (2007) 10 HKCFAR 676), and have therefore refused leave.
Conclusion
8. For these reasons, I make an order that Form 86 be amended as described above and the Leave Application be dismissed.
Dated the 20th day of May 2025
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(Teresa Ng)
for Registrar, High Court
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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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant
on the 20th day of May 2025
Alam Shahin
Applicant’s ref. no:
Nil |
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on the 20th day of May 2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 14741/18/12/98/B1750
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 4273/18 (Formerly RBCZ 11312/16)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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