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

HCAL 623/2020

[2025] HKCFI 4033

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 623 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;

2.   Application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

Introduction

1.  The Applicant is from Bangladesh.  By a Form 86 dated and filed on 14 April 2020 (“Form 86”), and a supporting affirmation also dated and filed on 14 April 2020 (“the Affirmation”), he sought leave to apply for judicial review of a decision of the Torture Claims Appeal Board (“TCAB”) (which was also a decision of the Non-Refoulement Claims Petition Office (“NRCPO”)) dated 16 March 2020 (“TCAB Decision”)[1], which was exhibited to his Affirmation.

2.  I will use the abbreviations and definitions from the TCAB Decision unless otherwise specified herein.

3.  The Applicant sought an oral hearing of his application. He appeared at such and made some oral submissions which I deal with below.

4.  I have amended the Form 86 to properly identify the putative respondent.

Background

5.  This is set out in the TCAB Decision. I will not repeat the contents thereof, but in summary:

a.  The Applicant claimed non-refoulement relief on the basis that if he were sent back to Bangladesh, he would be at risk of being harmed or killed by his four neighbours and AL People, and will be arrested by the police as there are three false cases against him;

b.  The claim was assessed on the grounds of Torture Risk[2], BOR 2 Risk[3], BOR 3 Risk[4], and Persecution Risk[5] and was rejected by the Director of Immigration (“Director”) in a decision dated 28 May 2019 (“Director’s Decision”);

c.  On 10 June 2019 the Applicant petitioned/appealed to the TCAB/NRCPO, which held a hearing in relation to the Applicant’s non-refoulement claims on 9 October 2019; and

d.  The TCAB/NRCPO handed down the TCAB Decision on 16 March 2020 which found that the Applicant had failed to make out his claim to non-refoulement relief on any of the relevant bases and confirmed the Director’s Decision.

Legal Principles

6.  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).

7.  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).

8.  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).

Discussion

9.  The grounds mentioned in the Form 86 are that “the Respondent is in breach of procedural fairness in the following parts”:

a.  “… the Respondent had unlawfully fettered his discretion by refusing the applicant’s appeal on the grounds that they did not satisfy the requirement”; (Ground 1)

b.  “… the Adjudicator acted in a procedurally unfair manner in dealing with Applicant’s appeal”; (Ground 2)

c.  “…the Respondent’s decisions to refuse the Applicant’s appeal were unreasonable or irrational in the public law sense, or are a result of procedural errors or unfairness”; (Ground 3); and

d.  “… the Respondent failed to meet the greater care and duty owed to a self-represented claimant”. (Ground 4).

10.  The Form 86 and the Affirmation also contain the following allegations:

a.  The Applicant was not given a fair opportunity to put forward his submissions in an oral hearing nor was he invited to submit written submissions. The Affirmation, but not the Form 86, also said “Even if the Adjudicator decides not to have oral hearing, he should at least invite me to submit written submissions and evidence”. Both documents also complain that “When the Applicant filled in the Appeal Form, the Applicant was only asked to write grounds for appeal but that will not count as an opportunity to reply to submissions made by the representatives of the [Director]”; (Complaint 1) and

b.  The TCAB had “significantly relied on the source of news which is not officially recognized or it is simply hearsay. They have also relied on some cases which are fairly outdated considering the dramatic changes.” In the Affirmation it is further said that “The lack of credible source of information has resulted in them making groundless speculations that it is safe for him to return back to my country of origin”. (Complaint 2)

11.  Grounds 1 to 4 are merely generic, vague, and unparticularised assertions using selected keywords and phrases without reference to any underlying facts or matters establishing why, how, and where each of those complaints arise in relation to the TCAB Decision. They are hence entirely inadequate as general assertions or propositions of law without particulars are not effective grounds to support a judicial review and cannot assist an applicant (Re Mizan Sikder [2019] HKCA 20 at §17; Re Aziz Nasir [2019] HKCA 578 at §17; Re Kharsu Numan [2019] HKCA 626 at §24; Re Salim Ahmed [2020] HKCA 244 at §20; Haider Khalil [2021] HKCA 223 at §16).

12.  However, given the seriousness of the issues at hand and Complaints 1 and 2, 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.

13.  The TCAB/NRCPO set out the Applicant’s family and educational background, and his procedural and immigration history (Paragraphs 1 to 6), followed by a record of the nature of and procedure adopted at the hearing, including acknowledgments and confirmations given by the Applicant that he had read and understood the Director’s Decision on his claim, the COI, and the written submissions of the Director (Paragraphs 7 to 11).

14.  The decision-maker then set out the Applicant’s case (Paragraphs 12 to 14), principles and facts relevant to its consideration of the evidence, including as to credibility, admissibility, the burden and standard of proof, admissibility, non-state actors and COI, and with reference to the high standards of fairness and principles relevant to obtaining information as explained in TK v Jenkins & anor. [2013] 1 HKC 256 (CA) (Paragraphs 12 to 24).

15.  This was followed by the TCAB/NRCPO’s detailed conclusions as reached on the evidence before it, which included that the risk of harm was localised, came from non-state actors without any link to an intention relevant to Torture Risk, and was based on speculation and fell short of a genuine and substantial risk, that reasonable state protection was available to the Applicant, and that there was no evidence to support the suggestion that the cases against him were false cases (Paragraphs 25 to 66).

16.  The decision-maker then applied her findings and found that Persecution Risk had not been established due to the lack of a Convention reason, referring to her earlier findings relating to the risk of harm, state protection, and as to the cases against the Applicant (and as to which there was no evidence that the Applicant would be deprived of his right to a fair trial) (Paragraphs 67 to 75). BOR 2 Risk and BOR 3 Risk were not made out on the facts (and in relation to the latter having particular regard to state protection) (Paragraphs 76 to 87), nor was Torture Risk given the failure to meet the elements thereof, including with respect to acquiescence (Paragraphs 88 to 92). The TCAB/NRCPO then briefly addressed the question of internal relocation (Paragraphs 93 to 99) before setting out its conclusions that for reasons above none of the four types of risk had been established, and confirmed the Director’s Decision (Paragraphs 100 to 104).

17.  I do not, from my examination and scrutiny, see that the Applicant has any reasonably arguable case that there was 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 that is sufficient to vitiate the TCAB Decision, even taking into account Grounds 1 to 6 either individually or cumulatively.  This is especially so as to the assessment, reasoning, and findings regarding the risk of harm and state protection, Torture Risk, Persecution Risk, BOR 3 Risk, and BOR 2 Risk, which are all matters primarily within its province.

18.  As to Complaint 1 in particular, that (whether on its own or in conjunction with any of Grounds 1 to 4) does not raise any reasonably arguable error of public law.  It was for the Applicant to establish his claims before the decision-maker. If he had further submissions to make (including in response to the Director’s submissions) to the decision-maker, he could have done so at the oral hearing. It is baseless to suggest that the Board had to invite him to do so before he would do the same, or that he was somehow deprived of some opportunity to make meaningful submissions. A fortiori when he had ample time from the Director’s Decision to prepare for the hearing of his appeal, there was no indication that the Applicant complained at the hearing about these matters (see on the contrary Paragraphs 10 and 11), and when he has not provided any specifics of how this apparently prejudiced or tainted the conduct of the hearing or the TCAB Decision, let alone in a manner sufficient to vitiate the latter.

19.  Nor do I see any reasonably arguable ground for judicial review arising in relation to Complaint 2 (whether on its own or in conjunction with any of Grounds 1 to 4). The Applicant has not identified what source of news or cases relied on was/were alleged to be “not officially recognized”, hearsay, or outdated, or how such are sufficient to vitiate the TCAB Decision. In any case, there was clearly no complaint about such at the oral hearing, where he even agreed that he had read and understood the Director’s Decision and the COI. Nor can I discern any public law error in the approach to COI taken by the decision-maker, including at Paragraphs 20, 42 to 48, 80, and 87.

20.  At the hearing the Applicant claimed that it was not possible for him to return to Bangladesh as the situation was different, there was no elected government, the situation was very bad, and it was difficult for the common people. However, I do not see how these submissions/bare allegations made to me at the hearing are relevant to or assist the leave application in any way given the findings in and my analysis of the TCAB Decision, and the nature and purpose of judicial review proceedings.

21.  There is hence 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.

Conclusion

22.  In the circumstances I have ordered that the application for leave to apply for judicial review be dismissed and made the other orders above.

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