|
HCAL 1007/2021
[2026] HKCFI 1897
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1007 OF 2021
|
BETWEEN
|
| |
Md Khorshed Alam Tipu |
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”, 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 5 October 2018”.
2. The applicant’s application to withdraw the application for leave to apply for judicial review be refused.
3. 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 5 July 2021 and filed on 16 July 2021, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of a decision which was described as follows:-
“the Decision of the Appeals Board, Immigration Dept. Date of Decision : 5-September of 2019”
2. The Torture Claims Appeal Board (“the Board”) did not make any decision dated 5 September 2019 regarding the applicant. The Board only made two decisions in respect of the applicant’s appeal and petition against the decisions of the Director of Immigration (“the Director”).
3. The Board made the first decision on 7 March 2014 to dismiss the applicant’s appeal against the decision of the Director dated 23 August 2013, which rejected the applicant’s torture claim.
4. The Board made another decision dated 5 October 2018 (“the Board’s Decision”), which dealt with the applicant’s petition against the decision of the Director dated 29 December 2016 (“the Director’s Decision”).
5. At the oral hearing before this court on 5 March 2026, the applicant said that he could not remember the date of the decision, but he made the Leave Application in 2021 when he was detained by the Immigration Department.
6. The applicant only mentioned one decision dated 5 September 2019 in his Form 86. In his supporting affirmation dated 16 July 2021, he also referred to one decision dated “09/2019”. Even though he could not remember the date of the decision, it is clear that the Leave Application should be 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/2021/HCAL001007_2021_files/the_Board's_Decision.pdf
7. The Board found that the applicant’s claim for non-refoulement protection were not made out on any of the applicable grounds (except Torture Risk[1]) under the Unified Screening Mechanism (“the USM”). Hence, the Board confirmed the Director’s Decision, which rejected the applicant’s claim for non-refoulement protection on the grounds of BOR 2 Risk[2], BOR 3 Risk[3] and Persecution Risk[4].
8. The applicant had previously made a torture claim and the Director rejected his torture claim on 23 August 2013. As aforesaid, the Board dismissed the applicant’s appeal in respect of the Director’s said decision on 7 March 2014. Thus, the applicant’s Torture Risk had been finally disposed of, and it was not necessary for the Board to re-assess the same in the Board’s Decision.
Amendments
9. The applicant named “Immigration Department – Appeals Board”, “Director of Immigration” and “Dept. of Justice” as the putative respondents, and “Immigration Dept” as the putative interested party in Form 86, when only the Board should be the putative respondent and the Director should be the putative interested party.
10. As aforesaid, the decision in respect of which relief is sought should be the Board’s Decision.
11. Thus, this court makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board”, the name of the putative interested party to “Director of Immigration”, and the decision in respect of which relief is sought to “Torture Claims Appeal Board’s decision dated 5 October 2018”.
Late application
12. By virtue of Order 53, rule 4(1) of the Rules of the High Court, Cap 4A, the applicant had to make the Leave Application within 3 months when the grounds for the Leave Application first arose, ie when the Board’s Decision was made.
13. However, the applicant filed Form 86 on 16 July 2021, which was more than 2 years and 9 months after the Board’s Decision (made on 5 October 2018). The applicant was hence late for more than 2 and a half years in making the Leave Application, and this court has to consider whether there is any good reason to extend the time for the applicant to make the Leave Application.
14. As held in AW v Director of Immigration [2016] 2 HKC 393, the criteria for granting an extension of time are:
(i) the length of the delay;
(ii) the reason for the delay;
(iii) the merits of the intended application; and
(iv) any prejudice to the putative respondent and to public administration.
15. The applicant did not make any application for extension of time and provided no explanation for the delay in making the Leave Application. At the oral hearing before this court on 5 March 2026, the applicant only said that he made the application after he was detained in 2021.
16. A delay of more than 2 and a half years is very substantial, and the explanation provided by the applicant is clearly unsatisfactory. If the applicant did want to apply for leave to apply for judicial review, he could have done so long before he was detained. More importantly, there is no merits in the intended judicial review as discussed below.
17. Thus, this court is not prepared to grant any extension of time to the applicant to file the Leave Application, even if an application for extension of time was made. The Leave Application can therefore be dismissed on the ground of being made out of time alone.
The applicant’s case
18. 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.
19. In sum, the applicant claimed for non-refoulement protection because if refouled to Bangladesh, he feared being harmed by his former business partner named Shafique Hossain (“Shafique”) and Shafique’s associates due to a loss of money caused by the applicant in 2006. The applicant also claimed to fear harm from the Bangladeshi police in relation to an alleged complaint lodged against him by Shafique.
Withdrawal before the Oral hearing
20. On 5 March 2026, the day of the oral hearing of the applicant’s case, the Director sent a letter to inform this court that the applicant applied to withdraw the Leave Application by way of his letter dated 4 March 2026. In the said letter, the applicant requested to withdraw his judicial review application because he wanted to go back to his country and it was safe for him to return.
21. However, the Director’s said letter was only brought to this court’s attention after the hearing of the Leave Application and the applicant did not indicate that he wanted to withdraw the Leave Application at the hearing.
22. There is no evidence to show that the applicant made the above withdrawal application other than out of his own volition. However, the Court of Appeal had held in Re Manik Md Mahamudun Nabi [2022] HKCA 471 that:-
“The applicant on his own motion applied to the Court to withdraw his application for leave to apply for judicial review. The Judge acceded to his application, whereupon there was nothing outstanding in the action. The Judge was correct to conclude the action by ordering a dismissal of the application instead of leaving the action at large.”
23. Thus, it is not right to leave the action at large by granting leave to withdraw to the applicant.
24. Moreover, at the oral hearing on 5 March 2026, the applicant did not indicate to this court that he wanted to go back to his country or it was safe for him to return. Instead, he told this court that he was receiving treatment at Kowloon Hospital currently, and he would return to his country only after his treatment.
25. In view of the applicant’s shifted intention regarding his withdrawal application, this court will refuse his withdrawal application and proceed to deal with the Leave Application.
Oral hearing
26. As aforesaid, the applicant attended the oral hearing of the Leave Application on 5 March 2026 and indicated that he wanted to return to his country upon completion of his medical treatment in Hong Kong. When this court asked the applicant for the grounds of his intended judicial review, he only said that his life was in danger in his home country and that was why he did not want to go back.
Grounds for judicial review
27. 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).
28. The applicant did not advance any ground for his intended judicial review in Form 86, nor in his supporting affirmation dated 16 July 2021. He only stated in the affirmation that he strongly felt that the decision was unfair due to the seriousness of his original non-refoulement claim.
29. At the oral hearing of the Leave Application, the applicant only mentioned that his life was in danger in his home country, which cannot amount to any valid ground for the intended judicial review.
Discussion
30. First of all, although the applicant stated in his affirmation that he strongly felt that the decision was unfair due to the seriousness of his original non-refoulement claim, he did not provide any details as to why the decision was unfair.
31. The Court of Appeal has repeatedly held that general assertions without particulars cannot be effective grounds to support a judicial review (see Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578; and Re Kharsu Numan [2019] HKCA 626). Further, as held by the Court of Appeal in Re Salim Ahmed alias MD Salim [2020] HKCA 244, “general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case”.
32. The applicant’s danger in his home country had already been fully assessed but rejected by the Board. If the applicant intends to challenge the Board’s finding of facts, it is not permissible in an application for judicial review.
33. 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).
34. Thus, despite the fact that the applicant did not advance any valid ground for the intended judicial review, this court will scrutinize the Board’s Decision for any errors of law, procedural unfairness, or irrationality as aforesaid.
35. In assessing the petition by the applicant, the Board held an oral hearing on 14 July 2017. The applicant was present and was given the chance to present his case to the Board in person.
36. As can be seen from the Board’s Decision, the Board was not persuaded that the applicant faced any real risk of proscribed harm from either Shafique and his associates, or from the police in Bangladesh.
37. The Board found that the dispute between the applicant and Shafique was only a private financial dispute. The Board was not satisfied that the state of Bangladesh, including its police force, was in any way involved in the claimed financial dispute between Shafique and the applicant or the applicant’s family. The applicant had never returned to Bangladesh after the claimed incident that he lost the money intended for the purchase of goods, and had never been harmed by Shafique.
38. The Board found the applicant’s claims that the local police took Shafiques’s side in the dispute being inconsistent with the evidence provided by the applicant. In fact, the applicant alleged that the local police officer in charge countersigned and endorsed the letter from the applicant’s brother concerning the harassment of the applicant’s family by Shafique and his associates. The Board considered that the letter, if accepted, indicated that the local police did not support Shafique.
39. Moreover, the Board was not satisfied on the evidence that the applicant would be denied adequate protection if required by him upon return to Bangladesh.
40. As the Board had not accepted the fundamental basis of the applicant’s claim that he faced any form of prospective harm either from Shafique and his associates or from the Bangladesh authorities including the police, the Board did not find it necessary to consider internal relocation for the applicant. Nevertheless, the Board did explicitly state that it noted the applicant’s own evidence as to his employment history as a trader both in Bangladesh and in Hong Kong, as evidence of his capacity reasonably to subsist in areas other than his place of origin.
41. Thus, the Board concluded that the applicant did not face any real risk of any of the proscribed forms of harm and had not substantiated a case for non-refoulement protection.
42. The finding of facts including the assessment of evidence and risk of harm was solely within the 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.
43. 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 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.
44. 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
45. For reasons aforesaid, the application to withdraw the Leave Application is refused and the Leave Application is dismissed for being made out of time and also for lack of merits.
Dated the 1st day of April 2026
| |
( Teresa NG )
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: 1 April 2026
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: 1 April 2026
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
TCAB 788/13/9/68/B272
USM 5798/17/1/82/B716
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 16/10 (formerly RBCZ 93/07)
QA T/C 1039/16 (formerly RBCZ 2001634/14)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] Risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.
[2] Risk of violation of right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[3] 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.
[4] Risk of persecution with reference to the non-refoulement principles under Article 33 of the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol.
|