BEGUM MST TAZLINA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 3230/2019

[2025] HKCFI 4384

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3230 of 2019

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

Following;

	consideration of documents only;          or
	consideration of documents and oral submissions by the Applicant in open court;

1.   Application to withdraw the leave application be refused; and

2.  Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 30 October 2019 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 18 October 2019 dismissing her appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 23 January 2019 (the “Notice”), refusing her application for non-refoulement protection.

Background

2.  The Applicant is a Bangladeshi, now aged 38.  Her personal background, the factual background leading to the present application, the basis of her claim, the arguments she advanced, the finding of the Board and the reasons for its Decision are set out in details in the Board’s Decision.  These will not be repeated here.  The hyperlink to the Board’s Decision is included below[1] for reference.  In gist, she claims, if returned to Bangladesh, she will be ill-treated or even killed by her husband’s eldest brother because of a land dispute and by a creditor because of a loan dispute. 

The finding of the Board

3.  The Applicant testified before the Board.  The Board found her evidence vague and conflicting.  Most importantly, she gave a fundamentally different account of the cause of the dispute between her husband and his brothers.  In her non-refoulement claim form (“NCF”) she said her husband and his brothers were engaged in a land dispute, but she told the Board that the dispute originated from her husband refusing to lend money to his brother, who suffered loss in his fishery business which had nothing to do with their dispute over land.

4.  The Board also had difficulty accepting her claim that her husband was killed by his brothers because he had a successful business.  She said her husband’s brother placed a live wire in the pond in which her husband was bathing and electrocuted him.  However, her husband’s death certificate showed that the death was registered on 10 December 2018, more than four years after his death and which certified that he “died under normal circumstances”.  The Board noted a number of other inconsistencies and discrepancies in her evidence.  For example, she told the Board that her husband put the land under her name in mid-2014, but her husband had died in February 2014, as stated in his death certificate.  The Board also found it unbelievable that if she had an outstanding debt owing to the creditor who had been pursuing her for several years, she would have told the Board that her brother-in-law was the only person who would harm her in Bangladesh and mentioned nothing about the creditor. 

5.  In view of the vagueness and superficiality in the Applicant’s testimony and her statements, the material and fundamental discrepancies in her account of events, and the lack of explanation for the discrepancies, the Board came to the conclusion that that the Applicant was not a witness of truth and rejected her evidence.  There is no factual basis to support those events.  The Board therefore found she had failed to establish the factual basis to support her claim for non-refoulement protection under any of the applicable grounds under the USM.  Hence, it dismissed her appeal.

Grounds for judicial review

6.  At the hearing, after the legal principles applicable to judicial review were explained to her and in answer to the Court’s question, the Applicant confirmed she had no complaint about errors of law, procedural unfairness or irrationality in the decision.  Her complaint is that she had told the Board everything but the Board did not give her any decision.  That could not be right for she must have received the Decision otherwise she could not and would not have made the leave application.  After these facts had been explained to her, she said what she meant was that she did not receive a decision in her favour.  The Board dismissed her appeal essentially because it found her incredible and rejected her evidence.  Thus, in effect, she is challenging the Board’s finding of fact that she is incredible and had failed to establish the factual basis to support her claim to non‑refoulement protection under any of the applicable grounds under the Unified Screening Mechanism (“USM”), which is not permissible in a judicial review.

7.  In her supporting affirmation, the Applicant advanced the following grounds of application:

(1)  the hearing before the Board is a rehearing and the Board is required to consider the claim afresh and arrive at its own determination;

(2)  the Board’s Decision is unreasonable, or irrational, or is the result of procedural errors or unfairness;

(3)  the Board had unlawfully fettered its discretion by refusing her appeal;

(4)  the Board failed to meet the greater care and duty owed to her as a self‑represented claimant;

(5)  the Board acted in a procedurally unfair manner in dealing with her appeal;

(6)  it is the Applicant’s fundamental human rights not to be subjected to torture;

(7)  the Board did not interact with the facts of her claim, did not conduct any analysis of the supporting document, or did not consider her BOR 2 Risk;

(8)  the Board’s Decision relied on the source of news which is not officially recognized or is hearsay;

(9)  the Board is not confined to any grounds of appeal put forward but considers all the facts of the claim afresh, but it did not do so;   

(10)  the Board relied on outdated cases and made groundless speculation;

(11)  in spite of the Applicant’s very severe problems in her home country and submitted the documents, the Board made a disappointing decision.

8.  The Court is familiar with these grounds which appear to be template grounds used in some other applications and have no bearing to the facts of this leave application.  The Applicant said that the grounds were prepared by someone based on what she had told him and she would be able to give further and better particulars of those grounds.

Ground (1)

9.  After the non-refoulement procedures had been explained to her, the Applicant accepted she had a screening interview before an immigration officer which resulted in the Director’s decision in his Notice, that she appealed the Notice and had a hearing before the Board.  She also accepted that the hearing before the Board was a fresh hearing or rehearing in which the Board considered the evidence afresh and made a decision independently of the decision in the Notice.

Grounds (2) and (5)

10.  The Applicant confirmed her earlier answers to the Court’s question that she had no complaints about errors of law, procedural unfairness and irrationality: see paragraph 6. 

Grounds (3) and (7)

11.  The Applicant was unable to adduce any evidence to support her claim in Ground (3) that the Board had fettered its discretion by refusing her appeal when there were grounds on which it could have allowed her appeal.  For the same reasons as explained in the last two sentences of paragraph 6, this ground is, in essence, a challenge of the Board’s finding of fact which is impermissible in an application for judicial review.  The Court will revisit this ground in its overall scrutiny of the Board’s Decision.  The Applicant was also unable to adduce any evidence in support of her claim that the Board failed to interact with the facts of her claim or conduct any analysis of the supporting document. 

Grounds (4), (8) to (10)

12.  The Applicant was unable to give particulars of the breach of duty alleged in Ground (4), the source of news which the Board should not have considered in Ground (8); the fact or evidence which it had failed to consider or reconsider in Ground (9) and the outdated cases which the Board should not have considered in Ground (10).  Without such particulars, this Court could not assess if these grounds are substantiated.  These complaints may have a bearing on the Board’s finding of fact and will be revisited in the Court’s overall scrutiny of the Board’s Decision.

Ground (6)

13.  The Applicant rightly pointed out that it is her fundamental human right not to be subjected to torture, but was unable to provide particulars of violation of her right.  Casting the widest net possible, this is a complaint that her claimed fear and risk of harm were not accepted by the Board.  That is a direct challenge of the Board’s finding of fact that she was not credible and had failed to prove her fear and risk of harm.  This is not permissible save for errors of law, procedural unfairness and irrationality. This complaint will be revisited in the Court’s overall scrutiny of the Board’s Decision.

Ground (11)

14.  For the same reasons as explained in the last two sentences of paragraph 6, the Applicant’s complaint that the Board made a disappointing decision is a direct challenge of the Board’s Decision.  This complaint will be revisited in the Court’s overall scrutiny of the Board’s Decision.

Overall scrutiny

15.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles applicable to non-refoulement protection under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness.  The Board analysed the evidence carefully, tested it against common sense and inherent probability.  It did not find the Applicant’s evidence credible and rejected her evidence.  It gave reasons for its finding.  It was on that basis that the Board found she had failed to establish the factual basis to support her claim for non-refoulement protection under any of the four applicable grounds under the USM.  This is a finding of fact exclusively within the realm of the Board, which the Court on a judicial review will not interfere save when such finding was made as result of error of law or procedural unfairness or irrationality in the Decisions.  The Court could detect no error of law or procedural unfairness in the Decisions.  The Decision does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  Basically, the Applicant had failed to discharge her burden of proving her fears and risks.  The Decision is utterly without fault.  The proposed judicial review has no realistic prospect of success.

Application to withdraw

16.  On 17 September 2025, the Applicant filed a summons to withdraw her leave application on the grounds that she wants to return to her home country, all her problems are finished and her mother is very sick.  There is no indication that she made the withdrawal application on his own free will and that he understands the consequence of the withdrawal; nor could such inference be reasonably drawn.  Indeed, her assertion that her mother is very sick suggests that she may be under some moral compulsion to return.  Hence, this Court is not satisfied that her application to withdraw is voluntarily made.  Further, by that time a decision had been reached to dismiss her leave application for want of merits and the order and Form CALL-1 were in the process of preparation and issue.   Hence, her application to withdraw is refused.

Conclusion

17.  For the above reasons, the Applicant’s application to withdraw her leave application and her application for leave to apply for judicial review are refused.

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

[1] https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003230_2019_files/the_Board's_Decision.pdf