AKTER TASLIMA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1509/2020

[2025] HKCFI 4496

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1509 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 oral submissions by the Applicant in open court;

1.   The Form 86 is amended on the Court’s own motion, naming only the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office as the putative Intended Respondent, and naming only the Director of Immigration as the Putative Interested Party; and

2.   Application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

Introduction

1.  The Applicant is a national of Bangladesh.  By a Form 86 filed on 16 July 2020 (“Form 86”), and a supporting affirmation also filed on 16 July 2020 (“the Affirmation”), she sought leave to apply for judicial review of a decision of the Torture Claims Appeal Board (“TCAB”)/Non-Refoulement Claims Petition Office (“NRCPO”) dated 4 January 2019 (“TCAB Decision”)[1]. I will use the abbreviations and definitions from the TCAB Decision unless otherwise specified herein.

2.  The Applicant did not seek an oral hearing of her application.  I have hence dealt with such on the papers.

Background

3.  This is set out in the TCAB Decision.  I will not repeat the contents thereof, but in summary:

a.  The Applicant claimed non-refoulement relief on the basis that if she were refouled to Bangladesh, she would be harmed or killed by one Fazlu, a brothel operator, and one Zahid, a creditor;

b.  The claim was assessed on the grounds of Torture Risk[2], BOR 3 Risk[3], BOR 2 Risk[4] and Persecution Risk[5] and was rejected by the Director of Immigration (“Director”) in a decision dated 29 May 2017 (“Director’s Decision”);

c.  The Applicant appealed/petitioned to the TCAB/NRCPO, which held a hearing in relation to the Applicant’s non-refoulement claim on 14 August 2018; and

d.  The TCAB/NRCPO issued the TCAB Decision on 4 January 2019, in which it found that the Applicant had failed to establish a case for non‑refoulement protection under any of the applicable grounds, dismissed the appeal/petition, and confirmed the Director’s Decision.

Legal Principles

4.  An applicant, even one acting in person, is required to identify the grounds of judicial review clearly and succinctly in the Form 86, and to fully and frankly disclose all material facts and potential legal answers (Ho Loy & Another v Director of Environmental Protection, unrep.  HCAL 21/2015, 22 December 2016, Chow J. (as he was then) at §142; Leung Kwok Hung, unrep., HCAL 83/2012, 28 September 2013, Lam J. (as he was then) at §35; Begum Khadija [2018] HKCA 571; Khan Kamran [2020] HKCA 380).

5.  It is trite that the role of the Court in a judicial review is not to provide a further avenue of appeal, and that the Court should not usurp the role of the TCAB/NRCPO which is (and together with the Director are) the primary decision‑makers.  The assessment of evidence, COI materials, and credibility, risk of harm, state protection and viability of internal relocation are primarily within the province of the TCAB/NRCPO and the Director, which are entitled to make evaluations based on the evidence available and to decide the weight to be given to them.  While the Court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of the issue at hand, the court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the TCAB/NRCPO.  (Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; Nupur Mst v Director of Immigration [2018] HKCA 524; Re Kartini [2019] HKCA 1022; Re Rupinder Singh [2021] HKCA 886).

6.  In order for me to give leave for judicial review, I have to be satisfied that there is an intended ground of review which is reasonably arguable, which is one that enjoys a realistic prospect of success (Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676).  As a leave application of this sort is meant to be a filtering process, I am not expected to give elaborate reasons for my decision (see Re Zunariyah [2018] HKCA 14, at §23).

7.  Given RHC O. 53 r. 4(1) and s. 21K(6) High Court Ordinance (CAP. 4A),where an Applicant applies for leave to apply for judicial review more than 3 months after the decision:

a.  The failure to apply within 3 months constitutes “undue delay”.  To justify an extension of time in which to apply for leave, the Applicant must show “good reason” to extend time.  In deciding this, certain factors that are likely to be significant are (i) the length of the delay (ii) the explanation for the delay[6] (iii) the merits of the substantive application[7] (iv) prejudice, and (v) whether the application raises questions of general public importance;

b.  Where the court considers that there is no good reason for extending the period, it will refuse leave to apply for judicial review.  The refusal of an extension of time is part and parcel of a refusal to grant leave to apply.  It is not the case that the court refuses the extension of time as a discrete decision and then makes no decision on the question of leave to apply for judicial review, treating this as a separate matter entirely;

c.  If the court is satisfied that there is good reason for extending the period, it does not follow that leave to apply for judicial review will automatically be given.  While the court might grant leave, it retains a discretion to refuse to do so and the existence of a good reason for undue delay is only one facet of the question, others including sufficiency of interest and the need to satisfy the arguability test.  Leave may also be refused on the basis that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration; and

d.  Even if leave to apply is granted, the issue of undue delay on the part of the applicant may be raised again at the substantive hearing of the judicial review application.  That is a separate consideration of whether relief should be refused on the basis that the court thinks that relief would be likely to cause substantial hardship or prejudice to the rights of another or be detrimental to good administration.

See AW v Director of Immigration & anor. [2016] 2 HKC 393 (CA) (at §§23 to 36), Thomas Lai [2014] 6 HKC 1 (at §§43 to 45 as also cited in AW, supra), and H v Director of Immigration (2020) 23 HKCFAR 248 at §§17-22, 36-44 citing inter alia both AW and Thomas Lai. See also Re Hariatiningsih [2021] HKCFI 1194 at §§12-13, 16-19 citing the aforesaid, upheld in [2022] HKCA 1321.

Discussion

8.  The application was filed on 16 May 2020, over 18 months after the TCAB Decision.  I do not see any good reason on the papers, and in the circumstances, to extend time for the Applicant’s application for leave to apply for judicial review.  I therefore refuse to grant such an extension of time, and dismiss the application for leave to apply for judicial review.  This is for the following reasons.

9.  Dealing, firstly, with the merits of the substantive application, the Form 86 does not contain any grounds for judicial review.  The Affirmation merely states that she seeks judicial review of the TCAB Decision and claims that the latter is “unfair and unreasonable.” This is entirely inadequate as any alleged ground as it is merely a generic, vague, and unparticularised assertion without reference to any underlying facts or matters establishing why, how, and where such complaints arise in relation to the TCAB Decision.  Such general assertions or propositions of law without particulars are not effective grounds to support a judicial review and cannot assist an applicant (Re Mizan Sikder [2019] HKCA 20 at §17; Re Aziz Nasir [2019] HKCA 578 at §17; Re Kharsu Numan [2019] HKCA 626 at §24; Re Salim Ahmed [2020] HKCA 244 at §20; Haider Khalil [2021] HKCA 223 at §16; Akhondo Shakhil [2021] HKCA 1616 at §15).

10.  Nevertheless, given the seriousness of the issues at hand, I have considered the TCAB Decision with rigorous examination and anxious scrutiny, applying the enhanced Wednesbury standard and bearing in mind the need for a high standard of fairness as well as the allegations mentioned in the Affirmation.

11.  The TCAB/NRCPO set out the Applicant’s procedural and immigration history, background, the basis of her claim, an outline of the conduct of the hearing, and principles in relation to Torture Risk (Paragraphs 1 to 43).

12.  The decision-maker then assessed the Applicant’s credibility and found, for reasons given therein, that on the totality of the evidence he was not convinced that the Applicant had come to Hong Kong because of the alleged threat to kill or harm her by Fazlu or Zahid, that either of them had caused her the pain or suffering as alleged or at all, that she had suffered any physical or mental pain and suffering as alleged, and that after over 5 years Fazlu or Zahid (if they existed) and their followers were chasing the Applicant all over Bangladesh and wanted to kill her. He found that the centrepiece of her story did not stand, that she was dishonest and unreliable, and that she was not a genuine claimant.  There was hence no factual basis to establish any risk of harm in Bangladesh and her claim failed on all grounds (Paragraphs 44 to 47).  He also assessed that none of the four types of risk had been established on her own facts, given factors such as the risk of harm, state protection, and state acquiescence. He also found that she could internally relocate within Bangladesh without undue hardship (Paragraphs 48 to 82).

13.  I do not, from my examination and scrutiny, see that the Applicant has any reasonably arguable case that there was procedural unfairness (bearing in mind the need for a high standard of fairness), an error of law, and/or irrationality/failure to meet the enhanced Wednesbury test that is sufficient to vitiate the TCAB Decision and justify the grant of leave.  This is especially so given that the assessment, reasoning, and findings regarding the evidence and credibility, the risk of harm, state protection and internal relocation are matters primarily within the province of the decision-maker.  Nor is there any public law basis to vitiate the decision-maker’s conclusions regarding Torture Risk, Persecution Risk, BOR 3 Risk, and BOR 2 Risk[8].

14.  There is hence no basis for the court to intervene by way of judicial review, and I am not satisfied that there are any reasonably arguable grounds for judicial review which enjoy a realistic prospect of success.

15.  Moving on from the question of merits, there is undue delay in this case as the leave application was filed over 15 months out of time. Despite this, there is no request for an extension of time to make the application in the Form 86.  There is also no explanation for this substantial undue delay.  Given such matters, I would refuse to extend time, and would dismiss the application for leave on the grounds of delay alone, even if the Applicant’s case on the merits could be said to be reasonably arguable or even strong.

16.  Thirdly, further to the lengthy and unexplained undue delay, and given the lack of any reasonably arguable grounds, I also see no prejudice to the Applicant if the application were not allowed to proceed, whereas allowing it to proceed would clearly be to the detriment of good administration and would needlessly prejudice the putative Respondent.

Conclusion

17.  In the circumstances, I have ordered that the application for leave to apply for judicial review be dismissed and made the other orders above.

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