AMIR HOSSAIN v. TORTURE CLAIMS APPEAL BOARD

HCAL 108/2020

[2025] HKCFI 1862

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 108 OF 2020

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.  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 10 January 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 11 December 2019 (“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/HCAL000108_2020_files/the_Board's_Decision.pdf

2.  The Board decided that the applicant’s non-refoulement claim was not made out on any of the applicable grounds under the Unified Screening Mechanism (“the USM”), and confirmed the decision of the Director of Immigration (“the Director”) dated 9 August 2018 accordingly.

Withdrawal at the oral hearing

3.  The applicant requested for an oral hearing of the Leave Application and his case was heard on 1 April 2025.

4.  At the hearing, the applicant informed this court that he wished to go back to his own country as the problem in his country had ended. Thus, he applied to withdraw the Leave Application.

5.  There is no evidence to show that the applicant made the above withdrawal application other than out of his own volition. With this withdrawal application, it is clear that the applicant no longer wishes to proceed with the Leave Application. Apart from making the withdrawal application, the applicant had nothing further to say at the hearing.

6.  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.”

7.  Thus, it is right for this court to deal with the Leave Application instead of granting leave to the applicant to withdraw the Leave Application. It is just not right to leave the action at large by granting leave to withdraw to the applicant.

8.  The applicant’s application to withdraw the Leave Application is therefore refused, and this court will proceed to consider the merits of the Leave Application in respect of the Board’s Decision.

The applicant’s case

9.  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.

10.  In sum, the applicant claimed for non-refoulement protection because he would be in danger if he went back to Bangladesh as he had a political problem there.

Grounds for judicial review

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

12.  However, the applicant did not advance any ground for his intended judicial review in Form 86, nor in his supporting affirmation dated 10 January 2020. The applicant merely stated in his affirmation that it was an affirmation for his leave to apply for judicial review against the decision of the adjudicator of the Board as well as the Director.

Discussion

13.  First of all, only the Board’s Decision is reviewable by judicial process and not the Director’s decision. There are established statutory procedures of appeal from the Director to the Board and the applicant has invoked those procedures. The Director’s decision was superseded by the Board’s Decision and is no longer susceptible to judicial review (see Re Moshsin Ali, HCAL 2048 of 2018, dated 28.09.2022).

14.  Thus, this court will only consider the Leave Application in respect of the Board’s Decision as discussed below.

15.  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).

16.  In assessing the applicant’s appeal, the Board held a hearing on 20 May 2019. The Board found that the applicant had been inconsistent concerning the central elements of his claim and the applicant was unable to provide coherent and plausible explanations for these inconsistences when confronted. The Board was not persuaded on the applicant’s evidence that he faced any form of proscribed harm upon return to Bangladesh. Thus, the Board concluded that the applicant was not entitled to non-refoulement protection on any of the applicable grounds under the USM.

17.  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.

18.  Moreover, even assuming that the Board’s assessment was wrong, but with the applicant’s admission at the oral hearing that the problem in his own country had ended, the applicant simply does not have any valid ground to claim for non-refoulement protection at all.

19.  In Po Fun Chan v Winnie Cheung (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

20.  For reasons aforesaid, 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