PRODIP GOWALA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 3788/2019

[2025] HKCFI 1590

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3788 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.  Form 86 be amended as follows:- the adjudicator of the Torture Claims Appeal Board / Non‑refoulement Claims Petition Office be removed as the Putative Interested Party, such that only the Director of Immigration be named as the Putative Interested Party.

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

Observations for the Applicant:

Introduction

1.  By Form 86 filed on 19 December 2019 (the “Form”), the Applicant applied for leave to apply for judicial review (the “Leave Application”) against the decision of the Torture Claims Appeal Board/ Non-refoulement Claims Petition Office (the “Board”) dated 13 December 2019 (the “Board’s Decision”).

2.  In the Form, the Applicant has named both the Director of Immigration (the “Director”) and the adjudicator of the Board’s Decision as the proposed interested parties.  This is misconceived.  The correct proposed interest party should be the Director only.  I make an order to amend the Form accordingly on the court’s own motion.

3.  The Applicant had requested an oral hearing for the application.  The hearing took place on 17 March 2025.  The Applicant attended in person.  I shall deal with the Applicant’s oral submissions hereinbelow.

Background

4.  The Applicant’s background, the basis of his claim and the arguments he advanced had been set out in details in the Board’s Decision, and it is not necessary for me to repeat the same here.  The hyperlink to the Board’s Decision is included below[1] for reference.

Discussion

5.  The applicable legal principles relating to application of this sort are well established.  The role of the Court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are 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 errors of law or procedural unfairness or irrationality in the decision of the Board.  (See Nupur Mst v Director of Immigration [2018] HKCA 524, at §14)

6.  In the Form, no grounds were provided in support of the Leave Application.

7.  In the supporting Affirmation, the Applicant alleged the following in support of the Leave Application:-

(1)  The Board had unlawfully fettered its discretion by refusing the Applicant’s appeal on the ground that they did not satisfy the requirements.

(2)  The Board had failed to meet the greater care and duty owed to a self‑represented claimant.

(3)  The Board’s Decision was unreasonable or irrational in the public law sense, or was a result of procedural errors or unfairness.

(4)  The “life and limb” of the Applicant are in jeopardy and the Applicant’s fundamental human rights “not to be subjected to torture” are involved in this case.

(5)  The Board acted in a procedurally unfair manner in dealing with the Applicant’s appeal.

(6)  The Applicant will face hardship if he returns to his country.  The Board had significantly relied on the source of news which is not officially recognized or is simply hearsay.   

8.  I do not consider any of the above Applicant’s contention meritorious. I shall briefly set out my reasons below.  First, in relation to points (1) to (3), (5) and (6) identified in paragraph 7 above, these grounds are nothing but vague assertions without particulars or elaboration.  The Applicant has not particularized, let alone demonstrated, how the Board had acted unlawfully, unfairly, unreasonably or irrationally as alleged.  The Applicant equally failed to identify what source of news or cases relied upon by the Board was/were alleged to be “not officially recognized” or hearsay.  The Board had comprehensively considered all the documents available, including those 70 pages submitted by the Applicant (see §30 of the Board’s Decision).  There is nothing to indicate that the Board had committed any error in this regard. More importantly, the Applicant has completely failed to identify any particular point(s) which the Board had allegedly relied upon in any particular documents he alleged to be wrong.  In the premises, I do not consider any of these grounds reasonably arguable.

9.  Second, in relation to point (2) identified in paragraph 7 above, the Applicant has also failed to particularize what precisely the Board was alleged to have failed to do towards the Applicant.  In this regard, it is important to note that the Applicant had refused to give evidence or to answer questions from the Board, notwithstanding the Board having explained to him the consequences (see §29 of the Board’s Decision).  I do not see any basis to criticize the Board’s treatment towards the Applicant. 

10.  Third, in relation to point (4) identified in paragraph 7 above, the Applicant’s claims had been thoroughly considered by the Board, and the Board was perfectly entitled to come to the conclusion it reached (see §§1 to 19, 29, 31 to 47 of the Board’s Decision).  There is nothing to suggest that the Board had failed to take into account any of the evidence adduced by the Applicant.

11.  At the hearing on 17 March 2025, the Applicant stated that after 5 August 2024, there were certain events happened in Bangladesh which showed that his life will be in danger if he returns there.  He said that the daughter of his paternal uncle, Rashimi Gowala, was abducted from his family home and she was forced to get married by some people from the Bangladesh Nationalist Party (BNP).  She was given a Muslim name and the people who abducted her had threatened to kill her family if they objected to the marriage.  I asked what that had to do with the Leave Application and the Applicant could not satisfactorily provide an answer. 

12.  There is no application before me for the admission of further evidence.  The Applicant’s new story (given orally and not on oath) is vague, without particulars and not supported by any documentary evidence.  Further, the Applicant has failed to demonstrate how such evidence is relevant to his claims (bearing in mind that it was Rashimi Gowala who was targeted rather than the Applicant himself, even if the Applicant’s new story is accepted).  There is no evidence that the alleged abduction and forced marriage of Rashimi Gowala was related to the alleged threat which formed the basis of the Applicant’s claims. The Applicant did not suggest that the alleged abduction and forced marriage of Rashimi Gowala was committed because of the Applicant.  Such a suggestion would in any event be incredible.  It is also important to note that the Board had rejected the Applicant’s claim of fear with detailed reasons provided (see §32 of the Board’s Decision).  In particular, the Board found that the Applicant’s claim of fear is not consistent with his past conduct and reaction shown in his confrontation with Bashir.  The Board did not commit any error in such finding. 

13.  In the premises, I do not find such new story (which was given in the form of submissions and not under oath) to be apparently credible.  I also do not consider that such new story will have an important influence on the result of the case.  Accordingly, I would have rejected the application for admission of such new evidence even if such application was made.     

14.  Having fully considered the Board’s Decision. I do not find any error of law, procedural unfairness or irrationality. Neither has the Applicant been able to demonstrate any of the same.  There is nothing to indicate that the Board had failed to take into account any relevant matters, including those stated in the supporting Affirmation.  The Board’s Decision was comprehensive with adequate reasons provided.  It satisfies the enhanced Wednesbury test and is not Wednesbury unreasonable or irrational.  There is plainly no basis to say that the Board had failed to assess the Applicant’s claims properly.  

15.  In the premises, I am not satisfied that the Applicant’s intended challenge of the Board’s Decision is reasonably arguable with any realistic prospects of success.  Accordingly, I refuse to grant leave for judicial review.

16.  Leave application of this sort is meant to be a filtering process and I am not expected to give elaborated reasons for my decision (see Re Zunariyah [2018] HKCA 14, at §23).  Suffice for me to state that in reaching the decision, I have considered all the relevant documents before me, as well as the grounds advanced by the Applicant. 

Conclusion

17.  In the premises, I make an order that the Form be amended as described above and the Leave Application 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

[1] https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003788_2019_files/the_Board's_Decision.pdf