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

HCAL 3627/2019

[2025] HKCFI 567

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 3627 of 2019

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

Following:

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

1.      Form 86 be amended, naming the Director of Immigration 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 (“Form 86”) filed on 5 December 2019, the Applicant applied 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 29 November 2019 (“the Board’s Decision”) affirming the decision of the Director of Immigration (“the Director”) dated 10 April 2018 (“the Director’s Decision”), which rejected her non-refoulement claim on all applicable grounds (“the Grounds”) under the USM.

2.  In Form 86, the Applicant named the Board as the proposed respondent and an address[1]  as the proposed interested party.  Considering that the Applicant should try to name the Director as the proposed interested party, I have amended Form 86 accordingly on my own motion.

Background

3.  The Applicant’s personal background, the facts identified by her to show that she would be harmed or killed in Bangladesh by people of the Awami League (“AL”) by reason of her being a supporter of AL’s enemy, the Bangladesh Nationalist Party, and the procedural history, etc. were set out in details in the Board’s Decision.  It is not necessary for me to reiterate them.  For completeness’ sake, reference can be made to the Board’s Decision, the hyperlink to which is included below[2]. I shall also adopt the Board’s abbreviations and descriptions unless otherwise specified. 

Discussion

4.  I am not satisfied that the Applicant’s intended challenge of the Board’s Decision is reasonably arguable with any realistic prospects of success (see Peter Po Fun Chan v Winnie Cheung & Another (2007) 10 HKCFAR 676) and have therefore refused leave.  The leave requirement should operate as a ‘filtering’ process.  I am not required or expected to give elaborate reasons for my decision (see Re Zunariyah [2018] HKCA 14 at §23); it is sufficient to state my observations, which I make after considering the detailed reasons and full analysis of the Board and in view of the absolutely minimal materials adduced by the Applicant in the Leave Application.   

5.  In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly (see Ho Loy & Another v Director of Environmental Protection, HCAL 21/2015 (22 December 2016) at §142), and further to make full and frank disclosure of all material facts to be verified by an affidavit.  However, no such grounds have been identified by the Applicant, and she merely contended that she would like to “reject” and set aside the Director’s Decision in her supporting affirmation and nothing else.

6.  The Court has repeatedly emphasized, specifically in the context of applications of this nature, that it does not usurp the role of the primary decision maker in judicial review [3]. While the Court should examine whether the procedure adopted by the primary decision maker meets the high standard of fairness, it should not intervene if the materials provided by an applicant do not demonstrate any basis or ground to challenge the legality, rationality or fairness of the process below (see Re Zunariyah (supra) at §22). In the present case, the Applicant has failed to meet such threshold.  He has not shown any errors of law or procedural unfairness or irrationality in the Board’s Decision, which the Board reached after correctly identifying the issues, making findings of fact based on the available evidence[4] and applying the law and relevant legal principles relating to the Grounds[5].  In these circumstances, I am not satisfied that the Court should intervene, bearing in mind the enhanced standard that should be adopted in scrutinizing the decision of the Board due to the seriousness of the issue at hand.

Conclusion

7.  For these reasons, I make an order that Form 86 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