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HCAL 121/2020
[2025] HKCFI 2599
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 121 OF 2020
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Rashel Md Mosaraf Hossain |
Applicant |
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and
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Torture Claims Appeal Board
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Putative Respondent |
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and
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Director of Immigration
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Putative Interested Party |
Application for leave to apply for judicial review
NOTIFICATION of the Judge’s decision (Order 53, rule 3)
Following:
Order by Deputy High Court Judge Michael WONG:
1. On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board” and “Director of Immigration” be added as the putative interested party.
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 13 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 2 January 2020 (“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/HCAL000121_2020_files/the_Board's_Decision.pdf
2. The Board rejected the applicant’s non-refoulement claim as not substantiated on all the applicable grounds under the Unified Screening Mechanism (“the USM”), and confirmed the decision of the Director of Immigration (“the Director”) dated 31 January 2019 (“the Director’s Decision”).
Amendments
3. The applicant wrongly named both the Board and the Director as the putative respondents and did not name any putative interested party in Form 86. This court therefore makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board” and add “Director of Immigration” as the putative interested party.
The applicant’s case
4. 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.
5. In sum, the applicant claimed for non-refoulement protection as he was targeted for harm by supporters of the Awami League (“AL”) because of his support for the Bangladesh Nationalist Party (“BNP”) and supporters of AL had extorted money from him because he was a successful businessman in Bangladesh. He also feared harm from the Bangladesh authorities because AL was the ruling party.
Oral hearing
6. The applicant requested for an oral hearing of the Leave application and his case was heard on 1 April 2025.
7. The applicant told this court that the condition in his home country is still not favorable for him to return. His cousin was shot with bullets by “other people” a week before the oral hearing. He expected his country would become safe and peaceful after the coming election. He requested this court to check on YouTube and other media to learn more about the current situation in Bangladesh.
8. He said that he is married to a Filipino wife who works as a foreign domestic helper in Hong Kong and they have a 9 months old son. His wife is living with her employer and can only see them on Sundays when she is on leave. Hence, he has to take care of the son. He is willing to return to Bangladesh when the country’s condition has improved and his son is older.
9. He also told this court that he had undergone a surgery on his lower abdomen in Queen Elizabeth Hospital. He was hospitalized for 1 year and 9 months during which he was in coma for 6 months. He did not know exactly what his illness was but he still feels pain in the lower abdomen. He attended Kowloon Hospital for post-surgery treatments for a few times but he stopped going there.
Grounds for judicial review
10. 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).
11. However, the applicant did not advance any ground for his intended judicial review in Form 86, nor in his supporting affirmation dated 13 January 2020. He merely stated in his affirmation that he would like to “reject and aside [sic] the Decision made by the Immigration Department” and “they disregard the danger threats I face in my country shold [sic] I be deported”.
Discussion
12. 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, [2018] HKCA 549).
13. Thus, this court will only consider the Leave Application in respect of the Board’s Decision as discussed below.
14. 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).
15. Thus, the applicant cannot challenge the finding of facts made by the Board. The Board did assess the applicant’s alleged danger and threats in full as can be seen in the Board’s Decision. This court has no obligation to find out the current situation of the applicant’s home country and to assess the applicant’s claims afresh, as the finding of facts is solely within the ambit of the Board.
16. The fact that the applicant is now married to a wife and has a son in Hong Kong is not a valid ground for the intended judicial review. It does not point to any error of law, procedural unfairness or irrationality in the Board’s Decision. These matters are simply irrelevant.
17. The applicant’s medical condition is also not an applicable ground for non-refoulement claim under the USM. In fact, this issue had never been raised for assessment by the Board.
18. In assessing the applicant’s appeal, the Board held an oral hearing on 3 July 2019. The Board found material inconsistencies in the applicant’s evidence and the applicant’s responses vague and non-persuasive. The Board found that the applicant was not a credible witness and rejected his evidence. The Board considered that the applicant had fabricated his claims so as to create a basis upon which to apply for non-refoulement protection.
19. After due consideration of the law and the evidence as presented by the applicant, the Board concluded that he was not entitled to non-refoulement protection on any of the applicable grounds under the USM. Since the applicant had failed to show a real risk of being harmed if returned to Bangladesh, the Board found it unnecessary to consider the issue of internal relocation.
20. This court finds nothing wrong in the way the Board reached its conclusion based on the evidence available to the Board.
21. 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.
22. 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
23. For reasons aforesaid, the Leave Application is dismissed.
Dated the 24thday of June 2025
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( Irene LEE )
for Registrar, High Court |
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
Notes for the applicant:
If leave has been granted, the applicant or his solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent/Handed to the applicant/the applicant’s solicitors on:
24 June 2025
Applicant’s ref. no:
Nil
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Sent/Handed to the putative respondent / the putative respondent’s solicitors / such putative interested parties as may be directed by the Court / the putative interested parties’ solicitors on: 24 June 2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 15565/19/2/84/B1987
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 4593/18 (Formerly RBCZ 12399/16)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
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