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HCAL 293/2020
[2025] HKCFI 1820
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 293 OF 2020
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BETWEEN
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Hossain Mohammed Monir |
Applicant |
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and |
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Torture Claims Appeal Board |
Putative |
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Respondent |
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and |
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Director of Immigration |
Putative |
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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”, the name of the putative interested party be amended to “Director of Immigration” and the decision in respect of which relief is sought be amended to “Torture Claims Appeal Board’s decision dated 24 January 2020”.
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 3 March 2020, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Director of Immigration (“the Director”) dated 24 January 2020 or 29 June 2018.
2. In relation to the applicant’s claim for non-refoulement protection, the Director made a decision dated 29 June 2018 (“the Director’s Decision”), not 24 January 2020. However, the Torture Claims Appeal Board ("the Board") did make a decision dated 24 January 2020 (“the Board’s Decision”) to affirm the Director’s Decision.
3. Only the Board’s Decision is reviewable by judicial process and not the Director’s Decision, as the Director’s Decision was superseded by the Board’s Decision and is no longer susceptible to judicial review (see Re Moshsin Ali, HCAL 2048 of 2018, dated 28.09.2022).
4. Thus, this court will only consider the Leave Application in respect of 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/HCAL000293_2020_files/the_Board's_Decision.pdf
5. The Board found that the applicant had failed to establish any ground on which he could claim non-refoulement protection under the Unified Screening Mechanism (“the USM”) except risk of torture under Part VIIC of the Immigration Ordinance, Cap.115, which was previously rejected by the Board on 14 January 2014.
Amendments
6. The applicant wrongly named the Director, the Board or the Non-refoulement Claims Petition Office as both the putative respondents and the putative interested parties 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 the name of the putative interested party to “Director of Immigration”.
7. Also, the decision in respect of which relief is sought is amended to “Torture Claims Appeal Board’s decision dated 24 January 2020”.
The applicant’s case
8. 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.
9. In sum, the applicant claimed for non-refoulement protection because he would be harmed or even killed by Awami League affiliates and people from Jamaat-e-Islami (collectively, “the political enemies”) if he were to be refouled to Bangladesh as he was involved in a political dispute with them.
Oral hearing
10. The applicant requested for an oral hearing and his case was heard on 17 April 2025.
11. At the hearing, the applicant said that he had submitted everything to the court and he had nothing to add.
Grounds for judicial review
12. 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).
13. The applicant asserted in Form 86 that the Board’s Decision was unreasonable as the Board did not carefully consider his claim. The applicant further alleged in his supporting affirmation dated 3 March 2020 that the Board failed to consider all the matters raised in his claims, did not care of its power of discrimination and/or did not give some adequate reasons for its decision.
Discussion
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. In assessing the appeal by the applicant, the Board held an oral hearing on 5 June 2019. The applicant was present and was given the chance to present his case and grounds of appeal to the Board in person. The Board carefully examined his evidence and questioned the applicant for details.
16. As can be seen from the Board’s Decision, the Board gave very full and detailed reasoning in rejecting the applicant’s claims. The Board noted significant discrepancies, inconsistencies and implausibility in his account in respect of a number of fundamental aspects of his claims. It is therefore untrue that the Board did not carefully consider the matters that he raised in his claims. The mere fact that the Board did not believe the applicant cannot be regarded as a discriminatory act towards him. The Board in fact gave very detailed reasoning for its decision.
17. The assessment of evidence, COI materials and risk of harm were primarily within the realm of the Board. In the light of the applicant’s lack of specificity, the Board found that the feared threats from his political enemies were merely theory or suspicion. The injuries resulted from the attack were not serious and did not attain a minimum level of severity. Thus, the Board found that there were no substantial grounds for believing that he would be subjected to torture if he were to be sent back to Bangladesh.
18. Moreover, state protection was available and internal relocation was viable for the applicant. The Board found that it would not be unreasonable or unduly harsh for the applicant to relocate elsewhere in Bangladesh such as Khulna and Sylhet to be as far from his home village as possible.
19. The Board is entitled to come to its own conclusion. If the applicant is seeking to challenge the Board’s finding of facts, it is not permissible in an application for judicial review.
20. Although the Board did not re-assess the Torture Risk under Part VIIC of the Immigration Ordinance, it was unnecessary to consider the same, as the Director had already considered and refused the claim on Torture Risk previously on 28 June 2013, and his appeal against that decision was considered and rejected by the Board on 14 January 2014.
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 12th day of May 2025
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( Thomas Chan )
for Registrar, High Court
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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 the applicant’s 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 12/5/2025
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: 12/5/2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 12371/18/7/121/B1372
Director of Immigration
Putative interested party’s ref. no.: QA T/C 1865/18 (Formerly RBCZ 2002097/14) (T2 S102), QA T/C 373/10 Pt. 2 (formerly RBCZ 621/07 Pt.2)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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