NUPUR ISRAT ZAHAN v. TORTURE CLAIMS APPEAL BOARD

HCAL 1535/2022

[2025] HKCFI 4598

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1535 OF 2022

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

	consideration of the documents only; or
	consideration of the documents andoral submissions by the applicant or counsel in open court;

1.      On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board” and the name of the putative interested party be amended to “Director of Immigration”.

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 and filed on 19 December 2022, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board (“the Board”) dated 16 August 2022 (“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/2022/HCAL001535_2022_files/the_Board's_Decision.pdf

2.  The Board found that the applicant was unable to establish a real likelihood of risk pertinent to any of the applicable grounds under the Unified Screening Mechanism (“the USM”) regarding her non-refoulement claim.  Hence, the Board dismissed her appeal/petition and confirmed the decision of the Director of Immigration (“the Director”) dated 24 August 2021.

Amendments

3.  In Form 86, the applicant named “The Adjudicator, Torture Claims Appeal Board” as both the proposed respondent and the putative interested party, when only the Board should be the putative respondent and the Director should be the putative interested party. 

4.  Thus, on this court’s own motion, the name of the putative respondent is amended to “Torture Claims Appeal Board” and the name of the putative interested party is amended to “Director of Immigration”.

Late application

5.  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.

6.  However, the applicant filed Form 86 on 19 December 2022, which was more than 4 months after the Board’s Decision (made on 16 August 2022).  The applicant was hence late for more than one month 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.

7.  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.

8.  The applicant did not make any application for extension of time but provided an explanation for the delay when she filed the Leave Application.  In the document titled “Form-86 Reason for delay”, the applicant stated that she did not get any letter or decision from the Board after the Board’s hearing on 6 December 2021, and she was only notified by an Immigration officer on the regular reporting day on 4 December 2022 about the dismissal of her appeal.  She then went to the Board and got the decision.

9.  However, even assuming the applicant’s explanation was true, she still delayed the filing for a further 15 days after she was informed by the Immigration officer of the dismissal of her appeal and provided no explanation for this delay.

10.  Although the delay of more than 1 month is not very substantial, as discussed below, there is no merits of the intended judicial review at all.  Thus, this court is not prepared to extend the time for the applicant to file the Leave Application, even if an application for extension of time was made.  The Leave Application can be dismissed on the ground of being made out of time alone.

11.  However, for the sake of completeness, this court will still examine the merits of the Leave Application.

The applicant’s case

12.  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.

13.  In sum, the applicant claimed for non-refoulement protection because she was in fear of being ill-treated and even killed by her husband Bappi upon her return to Bangladesh.

Withdrawal of the Leave Application

14.  By way of an affirmation dated 4 June 2025, the applicant made an ex parte application to withdraw her judicial review.  She stated that she wanted to withdraw the Leave Application because she wanted to go back to her home country, her family had already solved her problem and her life would be safe.

15.  There is no evidence to show that the applicant made the above withdrawal application other than out of her own volition.  With the withdrawal application, it is clear that the applicant no longer wishes to proceed with the Leave Application or any oral hearing of the Leave Application even though she had previously requested one.

16.  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.”

17.  Thus, it is just not right to leave the action at large by granting leave to withdraw to the applicant.  This court will proceed to determine the merits of the Leave Application.

Grounds for judicial review

18.  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).

19.  In an attachment to her Form 86 titled “Grounds on which relief is Sought”, the applicant listed 11 paragraphs under the heading “The respondent is in breach of procedural fairness in the following parts”.  Many other applicants in similar applications had in fact used the contents of this document and it is like a template for them.

Discussion

20.  All the 11 paragraphs as contained in the document titled “Grounds on which relief is Sought” were very general and without any particulars related to the applicant’s own case.  They only contained “keys words” such as the Board’s Decision was unreasonable and irrational, the Board was procedurally unfair, the Board had relied on sources of news which were not officially recognized or were hearsay, etc.  It does not help the applicant to establish any ground by just mentioning the right to life either. 

21.  In any event, the Board did assess the applicant’s risk of right to life.  The Board found that even at the height of the event where the applicant was ill-treated by her husband who had beaten her up for several minutes whenever they quarreled over some issues, the applicant had never apprehended any risk of death even though her husband threatened to kill her if she failed to send him money.  There were a lot of opportunities that her husband could have caused her serious harm or killed her, but he chose not to do so.  The verbal threat to kill the applicant was no more than an empty one.  There was insufficient evidence to show that her husband had the real intention to inflict any serious harm on her or to kill her.

22.  The applicant also alleged that the adjudicator had relied on sources of news which were not officially recognized or were hearsay.

23.  These allegations were plainly untrue.  As can be seen in the Board’s Decision, the Board had gone through very extensive country of origin information (“COI”) materials which were all properly identified and generally up-to-date.

24.  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”.

25.  Thus, none of the grounds that were contained in the said document could establish any valid ground to challenge the Board’s Decision when they are so vague and general without any requisite particulars related to the applicant’s case.

26.  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).

27.  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.

28.  The applicant was afforded an oral hearing before the Board on 6 December 2021 and the applicant was present.  Thus, the applicant did have the opportunity to present her case to the Board in person.

29.  The Board found that the testimony of the applicant at the hearing was generally coherent and consistent with the answers and information she had provided to the Immigration Officer.  Having taken her evidence into account, and bearing in mind the lower standard of proof on the part of the applicant, the Board took no issue on her credibility.

30.  However, the applicant’s case was about a private matter.  None of the encounters with the applicant was in any form of official capacity.  The applicant never sought assistance from the police.  The state would have no knowledge about the encounters between the applicant and her husband.  Apparently, the applicant was not targeted by the state or its agents.  The applicant could always report to the police against her husband for his domestic violence and criminal intimidation.  There was no evidence that the police would reject all reports without receiving bribes.  Furthermore, her husband was still a wanted person by the police since he jumped bail.  The police would definitely take action to arrest him upon reporting.

31.  Moreover, the Board found that effective state protection was available and internal relocation was viable for the applicant.  The applicant, aged 30 at the time of the Board’s Decision with ten years’ education and work experience, would have no problem in securing a reasonable job, whether in the City of Dhaka, or in other parts of the country.  Her husband would have no motivation nor resources to conduct a nationwide search for her.

32.  Taking the above into account, the Board found that there were no substantial grounds for believing that the applicant would suffer ill-treatment or serious harm upon refoulement.

33.  The assessment of evidence, COI and risk of harm was primarily within the realm 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 decision. 

34.  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.

35.  Thus, there is no merits in the Leave Application at all.

36.  Moreover, as the applicant had confirmed that it would be safe for her to return to her home country, it is clear that she no longer needs non-refoulement protection and the Leave Application serves no practical purpose.

37.  It is well established that the court may exercise discretion not to grant a remedy on judicial review if it would serve no practical purpose, where it may have become otiose or pointless to grant a remedy because the relevant detriment to the applicant has been removed (see AW v Director of Immigration and William Lam, CACV 63 of 2015).

38.  Even assuming that there were errors of law, procedural unfairness, or irrationality in the Board’s Decision and the case were remitted to the Board for reconsideration, there would simply be no more basis for the applicant to claim non-refoulement protection as it was no longer unsafe for her to return to her own country.  The Board should assess the risk of the applicant at the time of the proceedings, taking account of information that has come to light to ensure that it is able to make a “full and up-to-date assessment” of the current situation (see Ubamaka Edward Wilson v Secretary for Security and Another (2012) 15 HKCFAR 743).

39.  It is therefore otiose and pointless to grant leave to the applicant to proceed with the intended judicial review, and hence the Leave Application ought to be dismissed.

40.  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 intended judicial review has no realistic prospects of success at all, and hence the Leave Application must be dismissed.

Conclusion

41.  For reasons aforesaid, the application to withdraw the Leave Application is refused and the Leave Application is 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