RASHED JOARDER alias RASHED RASHEDUL ISLAM RASHED v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 544/2020

[2025] HKCFI 3062

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 544 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 naming the Director of Immigration as the Putative Interested Party;

2.   Leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

Introduction

1.  The Applicant is a national of Bangladesh. By a Form 86 dated and filed on 7 April 2020 (“Form 86”), which was accompanied by a supporting Affirmation also dated and filed on 7 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 13 March 2020 (“the TCAB Decision”)[1] which concerned and rejected the Applicant’s claim for non-refoulement relief on the basis of Torture Risk[2], BOR 2 Risk[3], BOR 3 Risk[4], and Persecution Risk[5].

2.  The Applicant sought an oral hearing of his application, at which he said he had nothing to add.

3.  The Affirmation contains, inter alia, some apparent observations by the Applicant that he believes the Director of Immigration (“Director”) “reached the wrong decision”, rejected his claim “without any proper inquiry and without carefully understanding [his] situation” and that “To understand my claim fairly, my immigration officers are invited to tour my country and ask those familiar with his case what real danger I would face if I am returned there.” However, it only exhibits the TCAB Decision. Some other allegations are set out in the Form 86 or the Affidavit, but without specifying the exact respondent in question.

4.  Prior to the TCAB Decision, the Director of Immigration (“the Director”) had indeed assessed and rejected the Applicant’s non-refoulement claims in two decisions dated 28 January 2016 (“Director’s Decision”) and 5 April 2017 (“Director’s BOR 2 Decision”), both of which were placed before the TCAB/NRCPO in the hearing bundle before it for the oral hearing on 15 May 2017 (see TCAB Decision Paragraph 4).

5.  I therefore did and do not see that the Applicant was clearly seeking leave to commence a judicial review of the Director’s Decision, or the Director’s BOR 2 Decision. However, if and insofar as he apparently seeks such leave, that application stands only to be rejected, and I do so, given both the existence and implications of the two-tier system and the lack of exceptional circumstances justifying such an application (Moshsin Ali [2018] HKCA 549; Yeni Setyawati v Torture Claims Appeal Board [2019] HKCA 1310).

6.  In the circumstances, I have amended the Form 86 of my own motion to identify the proper putative respondents, and the proper putative interested party.

Background

7.  The Applicant’s background and case as to the incidents underlying his claim for non-refoulement relief, and the immigration and procedural history leading up to the TCAB Decision, are set out in the TCAB Decision (Paragraphs 1 to 10), the Director’s Decision, and the Director’s BOR 2 Decision. For the sake of concision I will not repeat them, but in essence, and in addition to the portions already summarised above:

a.  The Applicant’s claim for non-refoulement relief stems from a fear that he will be harmed or killed by a person named Photon, and by Photon’s brother Bilu, due to a dispute over his fisheries business in Bangladesh;

b.  His claim for non-refoulement relief was assessed on the basis of Torture Risk, BOR 3 Risk, and Persecution Risk and was rejected as not being substantiated in the Director’s Decision, against which the Applicant filed a Notice of Appeal/Petition on 11 February 2016;

c.  The Applicant was invited by a letter from the Director dated 7 March 2017 to submit, on or before 21 March 2017, additional facts relevant to non-refoulement on BOR 2 Risk, but did not do so. His claim on BOR 2 Risk was hence rejected on 5 April 2017 by the Director’s BOR 2 Decision. As per the procedure in the letter dated 7 March 2017, the TCAB/NRCPO was to hear the appeal/petition on all applicable grounds (i.e. Torture Risk, BOR 3 Risk, BOR 2 Risk, and Persecution Risk) in one go, there being no need to file a separate and further petition to the NRCPO; and

d.  Both the Director’s Decision and the Director’s BOR 2 Decision were included in the Hearing Bundle before the TCAB/NRCPO for the oral hearing, which took place on 15 May 2017. The Applicant attended the oral hearing and gave evidence at it.

8.  The TCAB/NRCPO subsequently handed down the TCAB Decision.

Legal Principles

9.  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, HCAL 21/2015, 22 December 2016, at §142).

10.  It is trite that judicial review is not 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: see 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.

11.  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 (Peter Po Fun Chan v Winnie Cheung & Anr (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).

Discussion

12.  The Affirmation contains general complaints that the conclusion reached was wrong on the merits. However, given the nature of judicial review, such cannot amount to a proper ground for judicial review.

13.  The closest the Applicant comes to raising a ground for judicial review is his averment that his claim for non-refoulement relief was rejected “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 his case what real danger I would face if I am returned there”. However, this does not constitute an arguable ground of judicial review, as there is no legal or legislative basis to require the Director or 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 (see e.g. Palao Rosita Borja [2024] HKCFI 795; Das Radha Mohan [2024] HKCFI 2208).

14.  Nevertheless, and given the seriousness of the issues at hand, I have considered the TCAB Decision with rigorous examination and anxious scrutiny, applying the enhanced Wednesbury standard.

15.  The TCAB Decision outlined the relevant procedural and immigration history, and the relevant grounds that were considered by the Director, with reference to the Director’s Decision and the Director’s BOR 2 Decision (Paragraphs 1 to 4). It then referred to the nature of and factors relevant to the decision that it had to make, the conduct of the hearing and its approach relating to the evidence adduced and adopted by the Applicant, and the approach to be taken relating to COI (Paragraphs 5 to 8).

16.  The Applicant’s case was then set out in detail with reference to relevant documents and evidence at the hearing. This was followed by the TCAB/NRCPO’s summary of the principles that it had applied in evaluating the evidence before it, including as to inconsistencies, hearsay, inconsistencies, and the standard of proof (Paragraphs 9 to 14).

17.  The TCAB/NRCPO then went on to consider Persecution Risk, BOR 3 Risk, BOR 2 Risk, and Torture Risk and concluded that none of them were established, and hence affirmed the Director’s Decision and the Director’s BOR 2 Decision (Paragraphs 15 to 49).

18.  Despite my aforesaid examination and scrutiny, I do not see that it is reasonably arguable that there is procedural unfairness (bearing in mind the need for a high standard of fairness), an error of law, and/or irrationality/failure to meet the enhanced Wednesbury test which vitiates the TCAB Decision. In particular:

a.  In relation to Persecution Risk, the TCAB/NRCPO found on the evidence that no Refugee Convention reason was engaged, and held (with regard to relevant COI) that state protection was available. Similarly, it held (as it was entitled to) that there was insufficient evidence to establish BOR 3 Risk and Torture Risk. I consider that it gave adequate reasons for such conclusions and findings, which are primarily within the province of the TCAB/NRCPO; and

b.  Given the TCAB/NRCPO’s rejection of BOR 3 Risk and the lack of any public law basis for criticising such, the Applicant’s claim based on BOR 2 Risk was and is bound to fail in any event (See RM v Muttrie (HCAL 166/2015, 3 March 2016) M. Ng. DHCJ. (as she was then) at §52, Kulwinder Kaur [2022] HKCA 49 at §§54-59, Sandhu Vinny [2022] HKCFI 2327 at §§24-26, Sandhu Vinny [2023] HKCA 1261 at §§30, 32-33).

19.  In light of the above, I am not satisfied that there are any reasonably arguable grounds for judicial review which enjoy a realistic prospect of success.

Conclusion

20.  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