ULLAH OBAYED v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 232/2022

[2026] HKCFI 2233

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 232 of 2022

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

1.   Form 86 be amended, naming only the Torture Claims Appeal Board/Non‑refoulement Claims Petition Office as the Putative Respondent and the Director of Immigration as the Putative Interested Party.

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

Observations for the Applicant:

Introduction

1.   By Form 86 filed on 21 April 2022, the Applicant seeks 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 24 February 2022 (the “Board’s Decision”).  By that decision, the Board confirmed the decision of the Director of Immigration dated 28 April 2021 (the “Director’s Decision”), which had rejected his non-refoulement claim on all applicable grounds under the Unified Screening Mechanism (USM).

2.   The Applicant’s background, the basis of his claim and the arguments he advanced had been set out in detail in the Board’s Decision.  It is not necessary for me to repeat the same here.  Unless otherwise specified, the abbreviations and descriptions used in the Board’s Decision, the hyperlink[1] to which is included below, are also adopted herein.

3.  The Applicant attended the oral hearing.  He informed the Court that a date has been given by the Hospital Authority to remove his kidney stones in 2027.

Discussion

4.  Judicial review does not operate as a further avenue of appeal.  The Leave Application operates as a “filtering” process and there is no requirement or expectation to give elaborate reasons for my decision.  The primary decision makers are the Director of Immigration (the “Director”) and the Board.  Though in non-refoulement cases, the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board.  Assessment of evidence, country of origin information (COI) materials, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director).  The Court will not intervene by way of judicial review unless there are error of laws, procedural unfairness or irrationality in the decision of the Board. [2]

5.  In seeking to challenge the Board’s Decision, the Applicant ought to have clearly and precisely identified the grounds relied upon in the Form 86 and in his supporting affirmation. [3]  The Applicant’s grounds can be summarized as follows:-

(1)   The Board is in breach of procedural fairness in that a hearing before the Board is a rehearing and the Adjudicator is required to consider afresh the original decision and arrive at his own determination in respect of the claims (“Ground 1”);

(2)   The Board’s Decision to refuse the Applicant’s appeal was unreasonable or irrational in the public law sense, or was a result of procedural errors or unfairness (“Ground 2”);

(3)   The Board had unlawfully fettered its discretion by refusing the Applicant’s appeal on the grounds that they did not satisfy with the requirements (“Ground 3”);

(4)   The Board failed to meet the greater care and duty owed to a self-represented claimant (“Ground 4”);

(5)   The Board acted in a procedurally unfair manner in dealing with the Applicant’s appeal (“Ground 5”);

(6)   It must be borne in mind that “the life and limb are in jeopardy and the Applicant’s fundamental human rights not to be subjected to torture is involved” (“Ground 6”);

(7)   There is no indication that the Board interacted with the facts of the Applicant’s claim, conducted any analysis of the supporting documents or turned its mind to the ground under consideration being the risk of violation of the right to life under BOR 2 (“Ground 7”);

(8)   The Applicant will face hardship if he is to return back to his home country and the Board had significantly relied on source of news which is not officially recognized, or it is simply hearsay (“Ground 8”);

(9)   The characterization and established practice of the appeal process is either grounded and illustrative of its relevant obligations, and/or in any case has induced a procedural expectation that a claim would be considered afresh under applicable grounds (“Ground 9”);

(10)   The Board had relied on some outdated cases and the lack of credible source of information has resulted in the Board making groundless speculation (“Ground 10”);

(11)   The Board made the Applicant disappointed (“Ground 11”).

6.  I have scrutinized the Board’s Decision carefully and come to the view that none of the aforesaid Grounds can be established or considered as valid or effective public law grounds.

7.  First, most if not all of the grounds merely consist of generic, vague and/or unparticularized assertions without reference to any underlying facts or matters establishing why, how and where each of those complaints arise in relation to the Board’s Decision.  General assertions without particulars are not effective grounds and cannot assist the Applicant.[4]

8.  Insofar as Ground 1 and Ground 9 are concerned, the Board was well aware of the nature of the appeal was a rehearing of the application and that it must come to its own conclusion on all issues of credibility facts and law and on the relevant COI materials (see: Paragraph 6 of the Board’s Decision).

9.  The Board was acutely aware of the Applicant’s claim is based on his fear of being harmed or killed by Awami League Party (“AL”) people from his home village by reason of his membership of Jamaat which is a banned organization.  The Board duly considered the arguments and evidence including the documents put forward by the Applicant as well as the COI materials before coming to the view that his case has no credibility at all.  As a matter of fact-finding exercise and by reason of the Applicant’s own concession that he was in fact not a member of Jamaat, the Board was entitled to reject the entire factual basis for his claimed fear of persecution or other serious harm either by AL or the Bangladeshi authorities.  The Board had provided more than adequate reasons for rejecting the Applicant’s case (see: Paragraphs 42 to 56 of the Board’s Decision).

10.  It follows that the Board was entitled to find there was no genuine and substantial risk of the Applicant being subjected to the claimed ill-treatment amounting to torture and persecution, or that he would suffer severe physical or mental pain and/or his right of life would be violated should he return to Bangladesh.

11.  Second, it must follow that Grounds 8 and 10 have no merit.  There is no basis to attack the Board had relied on any so-called outdated case law or unreliable source of information or materials.

12.  Third, Grounds 3, 6 and 7 are obviously untrue.  A number of material and relevant questions were put to the Applicant at the hearing before the Board (see: Paragraphs 20 to 40 of the Board’s Decision).  The Board was well-engaged with the facts and the Applicant’s supporting documents in its assessment of evidence and consideration of the requirements that the Applicant must satisfied.

13.  Fourth, in all circumstances, I can discern no error of law or procedural unfairness or irrationality on the part of the Board in the assessment and rejection of the Applicant’s claim.  All the remaining Grounds have no merit and must also be rejected.

14.  The Board’s Decision is comprehensive with adequate reasons provided.  It was simply entitled to come to the conclusions it did and reject the Applicant’s claim.

15.  Finally, as for the alleged operation or procedure that the Applicant mentioned at the hearing, it is irrelevant to the Leave Application.

Conclusion

16.  Accordingly, I am not satisfied that the Applicant’s intended application for judicial review of the Board’s Decision is reasonably arguable with any realistic prospects of success.[5]  I dismiss the Application.

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