|
HCAL 3393/2019
[2025] HKCFI 4086
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 3393 OF 2019
|
BETWEEN
|
| |
Sheikh Abul |
Applicant |
| |
and |
|
| |
Torture Claims Appeal Board |
Putative |
| |
|
Respondent |
| |
and |
|
| |
Director of Immigration |
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”, “Director of Immigration” be added as the putative interested party, and the decision in respect of which relief is sought be amended to “Torture Claims Appeal Board’s decision dated 23 September 2019”.
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 and filed on 14 November 2019, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of a decision dated 8 March 2019, which is the date of the decision of the Director of Immigration (“the Director”).
2. However, the applicant confirmed at the oral hearing before this court on 26 June 2025 that the Leave Application was made in respect of the decision of the Torture Claims Appeal Board (“the Board”) dated 23 September 2019 (“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/2019/HCAL003393_2019_files/the_Board's_Decision.pdf
3. The Board decided that the applicant’s claim for non-refoulement protection were not made out on any of the applicable grounds under the Unified Screening Mechanism (“the USM”). Accordingly, the Director’s decision dated 8 March 2019 (“the Director’s Decision”) was confirmed, which rejected the applicant’s non-refoulement claim.
4. Both the Board’s Decision and the Director’s Decision were dealing with the applicant’s BOR 2 Risk[1], BOR 3 Risk[2] and Persecution Risk[3], but Torture Risk[4] was not assessed.
5. The applicant made a torture claim previously in 2013, which was rejected by the Director on 18 October 2013. The applicant’s late filing of the appeal against the said decision was refused by the Board on 29 November 2013. Thus, the Torture Risk of the applicant had been finally determined, and it was not necessary for the Board to re-assess the applicant’s Torture Risk again in the Board’s Decision.
Amendments
6. In Form 86, the applicant named the Director as the putative respondent and did not name any putative interested party, when the Board should be named as the putative respondent and the Director should be named as the putative interested party.
7. This court therefore makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board” and to add “Director of Immigration” as the putative interested party.
8. As aforesaid, the decision in respect of which relief is sought in the Leave Application should be the Board’s Decision. Thus, on this court’s own motion, the decision in respect of which relief is sought is amended to “Torture Claims Appeal Board’s decision dated 23 September 2019”.
The applicant’s case
9. 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.
10. In sum, the applicant claimed for non-refoulement protection because he feared that if refouled to Bangladesh, he would be harmed or killed by people who claimed to be members of the Awami League Party (“AL”) and who had attempted to extort money from him and his business.
Oral hearing
11. The applicant requested for an oral hearing of the Leave Application, and his case was heard on 26 June 2025.
12. The applicant informed this court that he wanted to go back to his country but he did not make any application to withdraw the Leave Application, as he wanted to return only after the Leave Application had been decided.
13. When this court asked him for the grounds of his intended judicial review, the applicant simply said that he had problem in his country.
Grounds for judicial review
14. The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).
15. The applicant did not advance any ground for his intended judicial review in Form 86. In his supporting affirmation dated 14 November 2019, he stated three grounds for his intended judicial review, which are summarised as follows:
(1) He faced all these dangerous problems, harassment and torture in his country and was unable to find any place to stay safely there.
(2) The Director reached the wrong decision in assessing his USM claim and rejected his claim without any proper inquiry and carefully understanding his situation.
(3) He would have been killed by his enemies and his problems were getting more and more life-threatening day after day.
16. As aforesaid, the applicant did not provide any grounds for his intended judicial review at the oral hearing before this court.
Discussion
17. First of all, only the Board’s decision is reviewable by judicial process and not the Director’s decision, as there are established statutory procedures of appeal from the Director to the Board and the applicant had 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). Thus, this court will only consider the Leave Application in respect of the Board’s Decision.
18. The second ground as aforesaid was directed at the Director. Hence, it cannot be used to challenge the Board’s Decision and can be simply ignored. Even if it was directed at the Board, as discussed in the ensuing paragraphs, the Board did make proper inquiry regarding the applicant’s situation before making its decision. The conclusion that the applicant’s claims were not substantiated was made after due consideration of the law and evidence before the Board. If the applicant intends to challenge the finding of facts of the Board, it is not permissible in an application for judicial review.
19. The first and third grounds as aforesaid were both related to the applicant’s alleged danger and threats in his home country, which had been fully canvassed in the Board’s Decision. At the oral hearing before this court, the applicant also failed to elaborate why or how the Board erred in the assessment of his alleged danger.
20. Thus, this court does not find that the applicant has established any valid ground for his intended judicial review.
21. 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).
22. Thus, despite that the applicant did not advance any valid ground for the intended judicial review, this court will still scrutinize the Board’s Decision for any errors of law, procedural unfairness or irrationality.
23. In assessing the applicant’s appeal/petition, the Board held an oral hearing on 22 August 2019 and the applicant was present. Thus, the applicant did have the chance to present his case to the Board in person.
24. The Board questioned the applicant for details of his claims but found that the applicant was an unreliable witness. The Board did not accept that the people extorted money from the applicant continued to look for him and issue threats against him seven years after the applicant closed his shop and fled. The Board found no evidence to support that the extortionists were affiliated with AL. The applicant’s own evidence was that he had no idea of their identities and extortion was a nature of doing business in the area where he did his business.
25. The Board, while accepting the applicant was running a business in one area of Bangladesh, did not consider that he was a high profile member in the business community or a high profile member of any political party so as to engage interest of AL nationwide.
26. The Board also found that although there was enmity between the applicant and some criminal extortionists who the applicant thought to be AL members, the Board did not accept that the applicant could be located using the resources of AL party. The law in Bangladesh provided for freedom of movement within the country with some exceptions. The Board noted that the applicant had previously relocated his business far from his home area. There was no reason why the applicant could not find suitable employment in other areas in Bangladesh given his experience in running his own business and in farming. Thus, the Board found that internal relocation was viable for the applicant, and the applicant could avoid the harm he feared by relocating to other parts of Bangladesh than the area where he resided previously.
27. On the basis of country of origin information and the available evidence before it, the Board was also satisfied that there was reasonable state protection available to the applicant should he require it.
28. The Board concluded that the applicant did not face a real risk of arbitrary deprivation of life or a real risk of being subjected to torture and did not have a well-founded fear of prosecution.
29. The finding of facts was within the sole ambit of the Board. The Board was entitled to make its own decision. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.
30. 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 errors of law, procedural unfairness or irrationality in both decisions. The Board’s Decision also satisfies the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decisions.
31. As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, for the court to grant leave to apply for judicial review, the claim has to be a reasonably arguable claim which enjoys 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
32. For reasons aforesaid, the Leave Application is dismissed.
Dated the 9th day of September 2025
| |
( 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:
|
|
|
|
|
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)).
|
|
Sent/Handed to the applicant/the applicant’s solicitors
on: 9 September 2025
Applicant’s ref. no:
Nil |
|
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:
9 September 2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 15712/19/3/77/B2010
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 65/19
(Formerly RBCZ 2000001/19)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[2] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[3] Risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees.
[4] Risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.
|