PANNA KANIZ v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2986/2019

[2025] HKCFI 3821

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2986 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.  Leave to amend the Form 86 be granted; 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 10 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 12 December 2018 dismissing her appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 8 July 2019. In her supporting affirmation, the Applicant annexed a copy of the Board’s decision dated 8 July 2019 (the “Decision”) dismissing her appeal against the Director’s decision in his Notice of Decision dated 12 December 2018 (the “Notice”) rejecting her application for non-refoulement protection. When the dates of the Decision and Notice were brought to her attention, the Applicant admitted she mistook the date of the Notice for the date of the Decision and vice-versa. To give effect to her intention, leave was granted to the Applicant to amend the dates of the decisions of the Board and of the Director pleaded in the Form 86 to “8 July 2019” and “12 December 2018” respectively.

Background

2.  The Applicant is a national of Bangladesh, now aged 37. 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 Decisions. These will not be repeated here. The hyperlink to the Board’s Decisions are included below[1] for reference. In gist, she claims that if returned to Bangladesh, she will be ill-treated or even killed by her father, her stepmother, her stepbrothers from her father’s first marriage, her uncle and his wife because of a land dispute.

The finding of the Board

3.  Having read the papers, the Board was satisfied that the appeal could be justly determined without a hearing pursuant to section 12 of Schedule 1A to the Immigration Ordinance and paragraph 15 of the Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme. Hence, it made a determination without holding an oral hearing.

4.  The Board noted that the Applicant’s case was only made up of her bare assertions which were not supported by any objective proof. The Applicant chose to live with her father, stepmother, uncle, aunt and stepbrothers. Even accepting her verbal allegations that they all treated her badly, and that her uncle threatened to kill her and hit her head with the handle of a knife during their dispute, the Board found he had no intention to kill her because the circumstances were such that he could have killed her if he wanted but he did not. The Board found at the highest her uncle only intended to give her some pressure to force her to leave the family house. It found her fear that her life would be in danger if refouled was merely her own speculation. It found the ill-treatment she suffered did not attain the minimum level of severity and that no public officials or other persons acting in an official capacity were involved in inflicting the ill-treatment on her. It also found that the feared ill-treatment did not arise out of a reason protected under the 1951 Convention relating to the status of Refugees and its 1967 Protocol and did not fall within the meaning of ‘torture’ under section 37U(1) of the Immigration Ordinance.

5.  On the basis of country of origin information (“COI”), the Board found reasonable state protection would be available to the Applicant on her return to Bangladesh. It also considered the perceived risk of harm is localised and as an able-body person it would not be unduly harsh for the Applicant to relocate to other parts of Bangladesh to avoid the risk of harm.

6.  Applying the law applicable to the non-refoulement protection under the Unified Screening Mechanism (“USM”) to the evidence and its further finding of fact, the Board found that the Applicant had failed to establish the factual basis to support her claim for protection under any of the applicable grounds under the USM. Hence, it dismissed her appeal against the Director’s Notice.

Grounds for judicial review

7.  After the principles applicable to judicial review had been explained to her, the Applicant complained that the Decision was unfair. She could not give particulars of the unfairness, but made a general assertion that the Board did not realise her problem and rejected her application for protection. In her supporting affirmation, she advanced the following grounds:

(1)  the decisions of the Board and the Director are wrong, unreasonable and unfair;

(2)  the Director failed to give proper weightage to the presence of state acquiescence;

(3)  the Board and the Director failed to take such argument into account or to give enough weight to such argument and COI supporting her case;

(4)  the Director’s unfair attitude;

(5)  the Director failed to attain the high standard of fairness required by the Wednesbury test;

(6)  the Board was procedurally improper or unfair in assessing whether to accept her explanations, and unreasonably required her to respond to questions that she was not in a position to offer any response; and

(7)  the Board ought to allow her appeal.

8.  Some of these grounds are directed at the Director, some at the Board and some at both the Board and the Director. The Director’s decision in the Notice was superseded by the Board’s Decision and is not amenable to judicial review: see Re Moshsin Ali[2] and Hafeezullah[3]. It is also not the subject matter of her leave application. For the Applicant’s benefit, the Court assumed that all these grounds are directed at the Board. But these grounds are all lacking in particulars. When asked for particulars, the Applicant repeated that the Decision is unfair because the Board did not realise her problem and rejected her application for protection. For reasons as discussed in the following section, this ground is in effect a challenge against the finding of fact by the Board which is impermissible in an application for judicial review.

9.  After the hearing concluded, the Applicant suddenly raised the point that her child is suffering from a medical condition and her life would be at risk if she is returned to Bangladesh with the Applicant. This issue had not been raised before the Board and her child is not a party to the leave application, the Board’s Decision could not be reviewed on this ground. She was advised to make a request to the Director for filing a subsequent claim.

Overall scrutiny

10.  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 accepted the Applicant’s evidence in toto and assessed her claim without calling for an oral hearing, which it was entitled to do. It analysed the evidence carefully, tested it against common sense and inherent probability. It found her case was based on her mere assertions without any objective evidence in support. It found on the basis of her evidence that her uncle threatened and assaulted her for the purpose of pressurising her to leave the family house but had no intention to kill her. It found the ill-treatment she suffered did not attain the minimum level of severity. That together with other finding of fact mentioned in paragraphs 5 to 7 above led the Board to the conclusion that the Applicant had failed to prove the factual basis to support her claim to non-refoulement protection under any of the applicable grounds. 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. These are mixed finding of fact and of the law. Insofar as these are finding of the law, they are absolutely correct. Insofar as these are finding of fact, they are solely 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 Decision. The Court could detect no error of law or procedural unfairness in the Decision. 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.

Conclusion

11.  For the above reasons, leave is granted to the Applicant to amend the Form 86, but her leave application as amended is 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