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

HCAL 629/2020

[2025] HKCFI 4038

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 629 of 2020

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.   The Form 86 is amended on the Court’s own motion, naming only the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office as the Putative Respondent; and

2.   Leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

Introduction

1.  The Applicant is a citizen of Bangladesh. By a Form 86 dated and filed on 14 April 2020 (“Form 86”), which was accompanied by a supporting Affirmation also dated and filed on 14 April 2020 (“the Affirmation”), the Applicant sought leave to commence a judicial review of a decision of the Torture Claims Appeal Board (“TCAB”)/Non-Refoulement Claims Petition Office (“NRCPO”) made on 3 October 2019 (“the TCAB Decision”)[1]. I will use the abbreviations and definitions from the TCAB Decision unless otherwise specified herein.

2.  The Applicant sought an oral hearing of his application. He said he had nothing to say.

3.  I have therefore amended the Form 86 of my own motion to reflect the identity of the proper putative Respondent.

Background

4.  This is set out in the TCAB Decision. While I will not repeat the contents thereof, in summary and in relation to the assessment of his claim:

(1)  The Applicant’s torture claim was rejected by the Director in a decision dated 5 February 2014. No appeal was filed by the Applicant;

(2)  After commencement of the USM the Applicant lodged a claim for non-refoulement relief. The basis of his claims was that if he were sent back to Bangladesh, he would be harmed or killed by a murderer and friends of the latter, or by the brother of the deceased and others on the side of the deceased;

(3)  Those claims were assessed on the grounds of BOR 2 Risk[2], BOR 3 Risk[3], and Persecution Risk[4] and were rejected by the Director in a decision dated 26 June 2018 (“Director’s 2^nd Decision”);

(4)  The Applicant hence sought relief from the TCAB/NRCPO by way of an appeal/petition dated 6 July 2018;

(5)  The TCAB/NRCPO held a hearing in relation to the Applicant’s non-refoulement claims on 6 December 2018 (“December Hearing”). The Applicant attended the December Hearing, at which he was assisted by an interpreter, and answered some questions from the TCAB/NRCPO. However, after around 2 hours had elapsed, it was adjourned to 24 January 2019 in circumstances set out in the TCAB Decision which I will not repeat (see in particular Paragraphs 92, 128 to 129, and 12 to 18);

(6)  The Applicant failed to answer telephone calls reminding him of the resumed hearing, failed to attend the scheduled resumed hearing on 24 January 2019 (“January Hearing”), and also failed to answer telephone calls made to him during the time of the hearing. The TCAB/NRCPO hence that day sent to the Applicant a letter with ancillary questions that he could answer if he wished, giving him an opportunity to apply for an adjournment within reasons within 7 days, and informing him that if he did not reply to the questions or did not apply for an adjournment, or the TCAB/NRCPO refused an adjournment, the TCAB/NRCPO would determine the matter without a further hearing (TCAB Decision Paragraphs 21); and

(7)  As there was no response to the letter, the TCAB/NRCPO proceeded to determine the petition/appeal and handed down the TCAB Decision on 3 October 2019 which found that the Applicant did not qualify for non-refoulement relief on any of the three applicable grounds, and confirmed the Director’s 2^nd Decision.

Legal Principles

5.  An applicant, even one acting in person, is required to identify the grounds of judicial review clearly and succinctly in the Form 86, and to fully and frankly disclose all material facts and potential legal answers (Ho Loy & Another v Director of Environmental Protection, unrep.  HCAL 21/2015, 22 December 2016, Chow J. (as he was then) at §142; Leung Kwok Hung, unrep., HCAL 83/2012, 28 September 2013, Lam J. (as he was then) at §35; Begum Khadija [2018] HKCA 571; Khan Kamran [2020] HKCA 380).

6.  It is trite that the role of the Court in a judicial review is not to provide a further avenue of appeal, and that the Court should not usurp the role of the TCAB/NRCPO which is (and together with the Director are) the primary decision‑makers.  The assessment of evidence, COI materials, and credibility, risk of harm, state protection and viability of internal relocation are primarily within the province of the TCAB/NRCPO and the Director, which are entitled to make evaluations based on the evidence available and to decide the weight to be given to them.  While the Court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of the issue at hand, 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 TCAB/NRCPO.  (Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; Nupur Mst v Director of Immigration [2018] HKCA 524; Re Kartini [2019] HKCA 1022; Re Rupinder Singh [2021] HKCA 886).

7.  In order for me to give leave for judicial review, I have to be satisfied that there is an intended ground of review which is reasonably arguable, which is one that enjoys a realistic prospect of success (Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676).  As a leave application of this sort is meant to be a filtering process, I am not expected to give elaborate reasons for my decision (see Re Zunariyah [2018] HKCA 14, at §23).

8.  Given RHC O. 53 r. 4(1) and s. 21K(6) High Court Ordinance (CAP. 4A),where an Applicant applies for leave to apply for judicial review more than 3 months after the decision:

(1)  The failure to apply within 3 months constitutes “undue delay”. To justify an extension of time in which to apply for leave, the Applicant must show “good reason” to extend time. In deciding this, certain factors that are likely to be significant are (i) the length of the delay (ii) the explanation for the delay[5] (iii) the merits of the substantive application[6] (iv) prejudice, and (v) whether the application raises questions of general public importance;

(2)  Where the court considers that there is no good reason for extending the period, it will refuse leave to apply for judicial review. The refusal of an extension of time is part and parcel of a refusal to grant leave to apply. It is not the case that the court refuses the extension of time as a discrete decision and then makes no decision on the question of leave to apply for judicial review, treating this as a separate matter entirely;

(3)  If the court is satisfied that there is good reason for extending the period, it does not follow that leave to apply for judicial review will automatically be given. While the court might grant leave, it retains a discretion to refuse to do so and the existence of a good reason for undue delay is only one facet of the question, others including sufficiency of interest and the need to satisfy the arguability test. Leave may also be refused on the basis that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration; and

(4)  Even if leave to apply is granted, the issue of undue delay on the part of the applicant may be raised again at the substantive hearing of the judicial review application. That is a separate consideration of whether relief should be refused on the basis that the court thinks that relief would be likely to cause substantial hardship or prejudice to the rights of another or be detrimental to good administration.

See AW v Director of Immigration & anor. [2016] 2 HKC 393 (CA) (at §§23 to 36), Thomas Lai [2014] 6 HKC 1 (at §§43 to 45 as also cited in AW, supra), and H v Director of Immigration (2020) 23 HKCFAR 248 at §§17-22, 36-44 citing inter alia both AW and Thomas Lai. See also Re Hariatiningsih [2021] HKCFI 1194 at §§12-13, 16-19 citing the aforesaid, upheld in [2022] HKCA 1321.

Discussion

9.  I do not see any good reason on the papers, and in the circumstances, to extend time for the Applicant’s application for leave to apply for judicial review. I therefore refuse to grant such an extension of time, and dismiss the application for leave to apply for judicial review. This is for the following reasons.

10.  Dealing, firstly, with the merits of the substantive application, the Form 86 does not set out any grounds for judicial review. The Affirmation merely contains the following allegations, which have been lifted almost word for word from other cases:

(1)  That the Director reached the wrong decision as he rejected the Applicant’s claim for non-refoulement relief “without any proper inquiry and without carefully understanding [the Applicant’s] situation”, which is followed by a suggestion that a fair understanding of his claim requires that “my immigration officers are invited to tour my country and ask those familiar with [my] case what real danger I would face if I am returned there”; (Complaint 1) and

(2)  Complaints at Paragraphs 15 to 17 of the Affirmation that, essentially, the wrong decision was reached on the merits[7]. (Complaint 2)

11.  Complaint 1 is not, and does not raise, an arguable ground of judicial review and must be dismissed, as:

(1)  Once the Applicant had pursued his appeal to the TCAB/NRCPO the Director’s 2^nd Decision was (absent exceptional circumstances, of which none have been suggested to me) no longer susceptible to judicial review (Moshsin Ali [2018] HKCA 549; Yeni Setyawati v Torture Claims Appeal Board [2019] HKCA 1310; Sherpunja Thapa Kul Prasad [2022] HKCFI 2434 §18); and

(2)  In any event, there is no legal or legislative basis to require the Director (or for that matter the TCAB/NRCPO) to actually visit the risk state or country of origin to conduct any investigation of a non-refoulement claim. While the inquiry is one of joint endeavour and there is a high standard of fairness, the burden is on the Applicant to prove his claims, and the Director and the TCAB/NRCPO are to conduct proper enquiries into current and relevant COI as regard his home country in their assessing and determining his claims (Palao Rosita Borja [2024] HKCFI 795; Das Radha Mohan [2024] HKCFI 2208).

12.  Complaint 2 also does not raise any reasonably arguable ground of judicial review. After all, judicial review proceedings are not meant to provide a further avenue of appeal, or an avenue for revisiting the assessment in the hope that the court may consider the matter afresh absent any legal error.

13.  Nevertheless, given the seriousness of the issues at hand and the Complaints raised, I have considered the TCAB Decision with rigorous examination and anxious scrutiny, applying the enhanced Wednesbury standard and bearing in mind the need for a high standard of fairness.  Having done so, I do not (for the following reasons) see that the Applicant has any reasonably arguable case that there was procedural unfairness, an error of law, and/or irrationality/failure to meet the enhanced Wednesbury test sufficient to vitiate the TCAB Decision. Hence there is no basis for the court to intervene by way of judicial review, and I am not satisfied that there are any reasonably arguable grounds for judicial review which enjoy a realistic prospect of success.

14.  The TCAB/NRCPO began with a summary of the Applicant’s  claim, immigration and procedural history (including a reference to the history prior to the TCAB/NRCPO hearings at Appendix A), and referred to the three relevant types of risk (Paragraphs 1 to 9). It then outlined the contents of the Hearing Bundle and COI that had been considered by the TCAB/NRCPO (Paragraphs 10 to 11, which referred to Appendices B, C, D, and E).

15.  The decision-maker then explained in detail what had happened some way into the December Hearing, including the Applicant’s responses to being read Appendices F and G, and events thereafter including at and after the January Hearing (Paragraphs 12 to 26). He then outlined the structure of the TCAB decision (Paragraphs 27 to 28), the material related to the claims set out in the documents (Paragraphs 29 to 91), the testimony that had been given at the December Hearing (Paragraphs 93 to 129), and the Applicant’s submissions (Paragraphs 130 to 136).

16.  This was followed by the TCAB/NRCPO’s approach in assessing credibility and allegations of fact in relation to the matter (Paragraphs 137 to 145), and its findings as to the evidence and its (and hence also the Applicant’s) credibility (Paragraphs 146 to 162). In the latter section it explained that there were various serious problems/issues with the Applicant’s credibility, the cumulative effect of which meant that it disbelieved and did not attach any credence to the Applicant’s evidence on various core facts advanced by him in support of his non-refoulement claim, which evidence would be and was disregarded in its assessment of the claim (see also Paragraphs 137, 143 to 145, 163 to 164).

17.  The decision-maker then had regard to the four applicable types of risk, and to the principles relevant to assessment of risk of harm and origin (Paragraphs 165 to 170) before he addressed each of the three types of risk on the relevant evidence and COI. He found that none of them had been established, reasonable state protection was available, and that internal relocation was reasonable and available, hence the Applicant did not qualify for non-refoulement protection and the Director’s 2^nd Decision was confirmed (Paragraphs 164 to 223, as to evidence see also to Paragraphs 146 to 150).

18.  From my aforesaid scrutiny, I do not see any reasonably arguable case that the TCAB/NRCPO committed any error of public law sufficient to vitiate the TCAB Decision and that would justify the grant of leave. There is hence no relevant basis (including by way of Complaint 2) on which the Applicant can seek to vitiate, via judicial review, the TCAB’s assessment of and conclusions as to evidence, COI materials, credibility, risk of harm, state protection, internal relocation, and BOR 2 Risk, BOR 3 Risk, and Persecution Risk, for which it gave adequate reasons, and all of which are primarily within the province of the TCAB/NRCPO.

19.  Secondly, there is undue delay in this case as the leave application was filed just over 3 months out of time on 14 April 2020. Despite this, there is neither a request for an extension of time to make the application in the Form 86, nor was any explanation given to me for the undue delay.

20.  Thirdly, I do not see any question of general public importance raised by the application which is likely to be resolved by the courts in any event.  Given the lack of any reasonably arguable grounds, I also see no prejudice to the Applicant if the application were not allowed to proceed, whereas allowing it to proceed would clearly be to the detriment of public administration and would needlessly prejudice the putative Respondent. 

Conclusion

21.  In the circumstances, I have ordered that the Form 86 be amended as described above, and that the application for leave to apply for judicial review 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