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

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

The applicant’s application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

Introduction

1.  By a “Notice of application to apply for leave for judicial review” in the prescribed Form 86 filed on 19 November 2020, the applicant applied for leave to apply for judicial review (“Leave Application”).  The intended judicial review was against the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) dated 7 November 2019 (“Board’s Decision”) dismissing the applicant's appeal against a decision of the Director of Immigration (“Director”) dated 7 November 2018 (“Director’s Decision”) rejecting the applicant's non-refoulement claim on all applicable grounds.  The Board’s Decision can be viewed at the following hyperlink: -

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003431_2019_files/the_Board's_Decision.pdf

2.  The basis of the applicant’s claim was that if refouled, she would be harmed or killed by (i) her Muslim parents and Hindu parents-in-law due to her marriage with a Hindu man; and (ii) an unknown creditor for an outstanding loan.  The Board’s reasoning and findings were set out in detail in the Board’s Decision and it is not necessary for me to repeat them.  Unless otherwise specified, I shall also adopt the Board’s abbreviations and descriptions stated in the Board’s Decision.

3.  At the applicant’s request for a hearing of the Leave Application, this court scheduled a hearing on 26 September 2025.  The applicant attended the hearing in person.  After having heard from her, this court informed her that the decision would be reserved, and be sent to his updated address.

Discussion

4.  The Leave Application operates as a ‘filtering’ process and there is no requirement or expectation to give elaborate reasons for my decision.[1]  It is sufficient to state my observations after considering the Board’s Decision and the applicant’s materials adduced.

5.  In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly[2], and further to make full and frank disclosure of all material facts to be verified by an affidavit.  The applicant’s Form 86 provided no such grounds.  The grounds contained in the supporting affirmation are against both the Director and the Board.  For those concerning the Board, the applicant averred that :

(i)  The hearing before the Board was unfair as the applicant was not provided with the hearing bundle earlier or with interpretation ([9] and [10]);

(ii)  The Board significantly relied on the source of news which was not officially recognized, hearsay or outdated ([11]);

(iii)  The Board’s Decision was wrong as the decision was arrived at without proper inquiry and without careful understanding of the applicant’s situation ([15]).

6.  At the hearing, this court asked the applicant whether she had any grounds she wished to submit in support of the Leave Application.  The applicant stated that she had nothing to say.

7.  As the Courts have repeatedly stated, a finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality.[3]  In the present case, the Board found that the applicant had concocted a false claim for non-refoulement protection due to the discrepancies in relation to the material aspects of her evidence.  The Board also took the view that her delay in seeking protection had undermined her credibility.  The Board therefore concluded that there was no real risk of harm if she were refouled. These are findings of fact, which the court in a judicial review will not interfere with, subject to there being any public law errors.

8.  Bearing in mind the enhanced standard that should be adopted in scrutinizing the Board’s Decision, this court is satisfied that the Board correctly applied the law relating to all the grounds and observed a high standard of fairness.  I am satisfied that the Board was entitled to reject the applicant’s claim after the Board found that the centerpiece of her evidence was fabricated.  The applicant’s written grounds were vague and did not condescend to particulars.  Neither was she able to advance any grounds at the hearing.  The applicant has not shown any errors of law or procedural unfairness or irrationality in the Board’s Decision.  The applicant’s intended challenge to the Board’s Decision is not reasonably arguable with realistic prospects of success such that would enable this court to grant leave[4].

Order

9.  The applicant’s application for leave to apply for judicial review 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