AKTER AMENA v. THE TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1702/2020

[2025] HKCFI 4953

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1702 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.  Form 86 be amended, and only the Director of Immigration be named as the Putative Interested Party.

2.  The application for leave to apply for judicial review out of time be dismissed.

Observations for the Applicant:

Introduction

1.  By a Form 86 filed on 24 August 2020 (the “Form 86”), the Applicant applied for leave to apply for judicial review against the decision by the Torture Claims Appeal Board (the “TCAB”) dated 26 August 2019 (the “TCAB Decision”), which affirmed the decision of the Director of Immigration (the “DOI”) dated 20 August 2018.

2.  I amend the Form 86 on my own motion to name only the DOI as the putative interested party.

3.  The Applicant requested for a hearing of this application and she attended the same. She further provided a 1-page written submission essentially urging me to carefully scrutinize her application because the danger was still continuing and she felt hopeless because the Bangladesh authorities would not help her. I have fully taken into account her oral and written submissions before reaching my decision.

Background

4.  The Applicant is a national of Bangladesh. She contends that she would be harmed, raped or killed if she is to go back to her home country. The Applicant’s husband (“S”) was a leader of a political party known as Jamaat-e-Islami (“JI”). In 2010 JI’s political rival Awami League (“AL”) came to power. In 2012, S was taken away by some uniform police officers for his alleged involvement in anti-government activities, and he was later found dead on a side road of the village with a fatal gunshot wound. The Applicant was escorted to the local police station 2 days later where she was raped by 2 police officers. She was threatened that she and her family members would be killed if she reported the rape incident. A week later, the Applicant’s mother told her that she was wanted by the police for alleged involvement in terrorist activities so the Applicant left her town. She was told that the police was still looking for her in April 2018. The Applicant’s personal background, the relevant facts and relevant procedural history have been sufficiently set out in the TCAB Decision, which can be viewed through a hyperlink[1]. I shall therefore not repeat them.

Discussion

5.  The leave application operates as a filtering process and there is no requirement or expectation to give elaborate reasons for my decision: Re Zunariyah [2018] HKCA 14 at [23]. It is sufficient to state my observations after considering the TCAB Decision and the materials adduced by the Applicant.

6.  I remind myself that in a judicial review, this court does not provide a further avenue of appeal. Though in non-refoulement cases an enhanced standard in scrutinizing the decision of the TCAB is required given the seriousness of the issue at hand, this court should not usurp the role of the TCAB, which together with the DOI are the primary decision-makers. A finding of fact is exclusively within the realm of the TCAB, and this 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: Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(1)]. There must be a reasonably arguable case with a realistic prospect of success before leave for judicial review will be granted: Peter Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

7.  In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly: Ho Loy v Director of Environmental Protection (unreported, HCAL 21/2015, 22 December 2016) at [142], and further to make full and frank disclosure of all material facts to be verified by an affidavit.

8.  The Applicant did not point to any error of law, procedural unfairness or irrationality of the TCAB Decision in the Form 86. Rather, in a 10-page exhibit to her affirmation, she complained that the TCAB “had unlawfully fettered its discretion” by refusing the Applicant’s claim, that the TCAB “acted in a procedurally unfair manner”, that the 2 decisions were “unreasonable or irrational in the public law sense”, and the TCAB “failed to meet the greater care and duty owed to a self-represented claimant”. She further alleged that the TCAB relied on news sources that was not officially recognized or outdated. The Applicant emphasized that she would still be in danger should she return, and might be persecuted by her relatives and the Muslim community generally because of the rape incident.

9.  As can be seen from the TCAB Decision, the TCAB took into account all the evidence available [2-37] and found that on the basis of the same, applying also the correct legal principles in respect of all four applicable grounds [39-54. 55-61] and taking into account Country of Origin information [62-76], the Applicant’s allegations were insufficient to make out any of the applicable grounds [94-102]. In particular, the TCAB found the core of the Applicant’s evidence vague and incredible [77-93]. This is a conclusion that the TCAB was fully entitled to come to.

10.  Further, the TCAB also concluded that state protection and internal relocation, if required, were available on the basis of the available evidence [102-104].

11.  As to the grounds raised by the Applicant in the exhibit to her affirmation, I see them as bare assertions without any basis. There was no procedural unfairness identified at all nor is there any basis to suggest that the TCAB Decision was unreasonable or irrational in the public law sense. The TCAB did not rely on “outdated” country of origin information; the burden is on the Applicant to demonstrate how her claim comes under one or more of the established grounds [57-58], and in any case she made no effort in identifying what “updates” there might be and how they might lead to a different conclusion. I find all of these grounds and complaints wholly unsubstantiated.

12.  All in all, I do not see any errors of law, procedural unfairness or irrationality in the TCAB Decision, despite rigorous examination and anxious scrutiny. The Applicant’s intended challenge to the TCAB Decision is not reasonably arguable, and accordingly the application for leave to apply for judicial review is dismissed. I further note that the application was brought out of time, given that Order 53 rule 4(1) requires the leave application to be taken out within 3 months after the TCAB Decision was made. Since I have held that the application is without merit, I also refuse to grant an extension of time. For completeness, I do not find the Applicant’s explanation for the delay satisfactory (that she lost her passport and needed time to get recognisance before the Commissioner of Oath would allow her to make an affirmation), because there is no evidence before me that she actually lost her passport and also because there is no evidence why it took so long (a full year) for recognisance to be obtained.

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