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

HCAL 566/2020

[2025] HKCFI 3526

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 566 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 oralsubmissionsfrom 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.   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 8 April 2020 (“Form 86”), which was accompanied by a supporting Affirmation also dated and filed on 8 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 23 March 2020 (“the TCAB Decision”)[1]. The TCAB Decision was the only document exhibited to the Affirmation.

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

Background

3.  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 latter decision. While for the sake of concision I will not repeat them, in gist, he fears he will be harmed or killed by members of the AL if he returns to Bangladesh.  He also claimed that state protection was not available and that internal relocation was not viable.  Unless otherwise specified herein, I have adopted the abbreviations and descriptions used in the TCAB Decision.

Relevant parties and decisions in relation to which leave is sought

4.  The Affirmation claims it is made in relation for leave to judicial review “against the Adjudicator… who refuse my Appeal/petition, as well the Director of Immigration [(“Director”)] who reject my torture claim which made under [the Immigration Ordinance] Risk of Torture “CIDTP”” and makes some complaints against both the Adjudicator and the Director (e.g. at Complaint 9 as defined below). However, in the Form 86 the Applicant named the relevant member/adjudicator of the TCAB/NRCPO as the only putative respondent, only sought relief in relation to the TCAB Decision, and named the Director as the only putative interested party.  I hence did and do not understand the Applicant to be seeking leave to commence a judicial review of the Director’s decision dated 27 September 2019 (“Director’s Decision”).  If and insofar as he apparently seeks such leave, that application stands only to be rejected and I do so given the existence and implications of the two-tier system, the lack of exceptional circumstances justifying such an application, and my findings below (Moshsin Ali [2018] HKCA 549; Yeni Setyawati v Torture Claims Appeal Board [2019] HKCA 1310).

5.  I have therefore amended the Form 86 of my own motion to reflect the identity of the proper putative respondent.

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 for the application for leave as apparently raised in the Form 86 are that “the Respondent is in breach of procedural fairness in the following parts”:

(1)  “… 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)

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

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

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

10.  The Form 86 also says that the application “also includes a judicial review of the Adjudicator’s decision of the Applicant’s oral hearing of the Appeal/Petition.” As this is repeated in the Affirmation, I will address this in relation to Complaint 1 below.

11.  The Affirmation contains the following allegations:

(1)  That the Applicant “also includes a judicial review of the Adjudicator’s decision of my oral hearing of the Appeal/Petition”; (Complaint 1)

(2)  The Applicant lodged a claim for non-refoulement protection on 3 June 2019[2], which was transferred into the USM “and it was refused in less than a years on 27 day of September 2019 which is super quick”; (Complaint 2)

(3)  The Applicant was not legally represented at the hearing before the TCAB/NRCPO, and “no Legal advices(sic) was provided to the Applicant before his appeal filing”; (Complaint 3)

(4)  The majority of the hearing bundle was in English and the bundle was given to him only a few days before the appeal hearing with an intervening weekend, and he did not have time to find a reasonably cheap interpreter or hire one since he had no income and was not allowed to work in Hong Kong. He hence did not understand what would happen and was “confused” in terms of what was happening, and having answered all the questions honestly is aggrieved that his credibility was found questionable. The hearing was unfair due to lack of care by the TCAB to make appropriate arrangements in relation to the hearing bundle; (Complaint 4)

(5)  The Applicant was notified of the decision by letter on 6 April 2020, and not by phone as he had requested; (Complaint 5)

(6)  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. 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 6)

(7)  It was unfair for a decision to be made on BOR 2 Risk “without even being screened by the Immigration Department. How is this possible for any claim goes to Appeal section directly without even screened or verify by the Immigration Department first?” (Complaint 7)

(8)  “Similar to this there is many more unacceptable and unexplainable grounds, which are shown to refuse my Appeal/petition.” (Complaint 8)

(9)  That he believes the Director and the Adjudicator rejected his claim for non-refoulement relief “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 officer and the Adjudicator are invited to tour my country and ask those familiar with [my] case what real danger I would face if I am returned there”; (Complaint 9) and

(10)     Complaints that the wrong decision was reached on the merits[3]. (Complaint 10)

12.  Grounds 1 to 4 are the only grounds mentioned in the Form 86, but are entirely inadequate, being 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.

13.  Nevertheless, given the seriousness of the issues at hand and the Complaints raised, 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.  Having done so, I do not (for the following reasons) see that the Applicant has any reasonably arguable case that there was procedural unfairness, an error of law, and/or irrationality/failure to meet the enhanced Wednesbury test sufficient sufficient to vitiate the TCAB Decision, even taking into account all of Grounds 1 to 4 and Complaints 1 to 10.  Hence there is 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.

14.  The TCAB Decision starts by setting out the relevant grounds for non-refoulement relief, the Applicant’s procedural and immigration history (including the handling and result of his claims for non-refoulement relief), and his case for non-refoulement with regard to the facts (Paragraphs 1 to 18).

15.  The decision-maker then went on to outline the conduct of the hearing before the TCAB/NRCPO, wherein the decision-maker explained the Applicant’s rights (which he understood), the Applicant confirmed the truthfulness and correctness of the contents of his Non-Refoulement Claim Form (“NCF”) as well as his record of interview with officers from the Department of Immigration without making any amendment, addition, or deletion, and adopted those contents and answers as his evidence and chose to answer questions raised by the TCAB/NRCPO (Paragraph 19).

16.  The TCAB/NRCPO set out the gist of the Applicant’s testimony at the hearing (Paragraph 20 to 28), followed by extensive references to COI over some 15 pages (Paragraph 30).  There was then reference to general legal principles, including as to the need for a high standard of fairness, as to the burden and standard of proof, the relevant risk of harm, state acquiescence, and internal relocation (Paragraphs 31 to 36).

17.  Although the TCAB/NRCPO concluded (for reasons that it gave) that the Applicant’s credibility was “very doubtful” and expressed “grave reservations” as to such (Paragraphs 37 to 41), it went on to consider each individual ground of risk and found, referring to the evidence and COI, and giving reasons for doing so, that none of Persecution Risk, BOR 3 Risk, BOR 2 Risk, or Torture Risk were established.  Notably, it found that this was a non-state case, that no Convention reason (in relation to Persecution Risk) was engaged, that state protection was available, that internal relocation was viable, and that there was no substantial ground for believing the Applicant was at risk of suffering severe ill-treatment or serious harm upon being refouled. It accordingly confirmed the Director’s Decision (Paragraphs 37 to 73).

18.  Having regard to the above, and firstly, I do not see any reasonably arguable ground for judicial review arising in relation to Complaints 1 and 6, even if such are considered alongside the Grounds mentioned in the Form 86. Here, an oral hearing was held at which salient matters were canvassed with the Applicant, pursuant to which the decision-maker drew conclusions based on (and giving reasons with reference to) the relevant evidence and COI before it.  The Applicant has not identified what source of news or cases relied on was/were alleged to be “not officially recognized”, hearsay or outdated, let alone how such have allegedly resulted in a reasonably arguable public law error in relation to the conduct of the oral hearing and the findings pursuant thereto as set out in the TCAB Decision. Nor do I see that any such issues arise in this case.

19.  Moreover, and for reasons below, I do not see that the Applicant’s other Complaints and Grounds establish any reasonably arguable error of public law which would entail him to rely on Complain 1, whether in relation to the conduct of the oral hearing, or the conclusions reached in the TCAB Decision.

20.  As to Complaint 2, I do not see that the length of time taken by the Director to process the Applicant’s claims gives rise to any reasonably arguable case that there has been a public law error (including in relation to Grounds 1 to 4) which vitiates the TCAB Decision.  A fortiori when the Applicant has not identified any unfairness or prejudice.

21.  Complaints 3 and 4 do not (even if viewed cumulatively, and/or alongside Complaints 1 and 6) establish any reasonably arguable case of an error of public law, including those set out in Grounds 1 to 4:

(1)  Neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187, nor the judgment of FB v Director of Immigration HCAL 51/2007 grant the Applicant an absolute right to free legal representation at all stages of the proceedings (Re Zafar Muazam (unrep., CACV 2/2018, 23 March 2018); Re Zunariyah [2018] HKCA 14; Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17; Re Lopchan Subash [2018] HKCA 37; Re Ahmed Syed Rafiq [2018] HKCA 178 at §22; Vu Hong Diep v Torture Claims Appeal Board/Non-Refoulement Claims Petition Office [2023] HKCA 1378).

(2)  Here, I see nothing amiss with the lack of legal representation before the TCAB/NRCPO, given that the Applicant was legally represented prior to the making of the Director’s Decision. A fortiori where the Applicant did not, between the Director’s Decision and the filing of the Form 86 and Affirmation, apparently complain (including to the decision-maker) about the lack of legal representation, and has not identified any specific resulting unfairness/prejudice.

(3)  Similarly, the high standard of fairness does not require or include provision of interpretation at any time the Applicant claimed or desired, particularly when it was his choice to come to Hong Kong where the official languages are Chinese and English. He has to cope with and find ways around this alleged disability and cannot expect to have the luxury of any documents to be fully translated into his first language for his benefit as and when he requires.  He has to find assistance himself from among his friends and his ethnic community. Indeed, the Applicant’s Form 86 was in English, and the Affirmation is written in English with a translation clause. The Applicant hence has access to, and would have been able to seek, interpretation services and language assistance if necessary (Kamran Khan [2022] HKCFI 1924 at §§21-25 and Kamran Khan [2022] HKCA 460 at §§16-17).

(4)  I see no reasonably arguable case of procedural unfairness in relation to Complaint 4, given that:

i.    The Applicant should have been familiar with the information he had provided in the Bundle, in particular with the NCF and the record of his interview which were of core importance and which would have been prepared with the benefit of translation and legal assistance leading up to the Director’s Decision.  Also, some 3 ½ months elapsed between the date of the Director’s Decision (which annexed the list of COI referred to) and the hearing, while some 3 months elapsed between the Applicant filing his notice of appeal/petition and the hearing.  He hence had ample time, in preparing for the hearing, to familiarise himself with the Director’s Decision and the aforesaid core documents and information that he had provided;

ii.   The Applicant should have paid due attention to and prepared for his appeal hearing regardless of any intervening weekend, and given also his access to interpretation services/language assistance;

iii.  There is no indication that he complained at the hearing about the lack of interpretation and/or understanding of the Bundle or any documents, that he needed more time or assistance to prepare for the hearing, about unfairness, and/or about any confusion relating to such issues.  See and cf. TCAB Decision paragraph 19; and

iv.  The Applicant has not identified any specific procedural unfairness and resultant confusion on his part which affected or prejudiced the conduct of the oral hearing and/or the NRCPO BOR 2 Decision. Nor do I see that that any such issues arise in this case.

(5)  Complaints 3 and 4 hence do not establish any reasonably arguable public law basis for the Applicant to criticise the TCAB/NRCPO’s assessment of his credibility and the facts.

22.  Nor do the facts within Complaint 5 (even if accepted as true) raise any reasonably arguable ground for judicial review.  There is no legal basis on which the Applicant was entitled to be informed by telephone of the outcome of his petition.  There is also no public law error arising from the Applicant being served by post with the TCAB Decision, given the provisions of s. 37ZV Immigration Ordinance (CAP. 115) and Paragraph 22.5 of The Practice and Procedural Guide of the Administrative Non-Refoulement Claims Petition Scheme in force at the time.  In any event, the Applicant filed his Form 86 and Affirmation within the 3-month deadline.

23.  Complaint 7 is is devoid of merit as the issue of BOR 2 Risk was clearly raised and assessed by the Director in the Director’s Decision, pursuant to which the Applicant petitioned to the TCAB/NRCPO.  I also do not see that it is reasonably arguable that such approach is to be criticised on any public law grounds, let alone to an extent so as to vitiate the TCAB Decision.

24.  As for Complaint 8, the Applicant has not provided specifics or particulars of such alleged “many more unacceptable and unexplainable grounds” (including whether and why such are public law grounds) on which he apparently relies.  There is hence no complaint which I can properly evaluate.  In any event, for reasons above and below, I see no reasonably arguable case that there are public law errors sufficient to vitiate the TCAB Decision.

25.  Complaint 9 also does not raise any arguable ground (including in the nature of the Grounds) 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 (Palao Rosita Borja [2024] HKCFI 795; Das Radha Mohan [2024] HKCFI 2208).

26.  Complaint 10 does not raise any reasonably arguable ground of judicial review.  This is because the role of the Court in a judicial review is not to provide a further avenue of appeal, and judicial review is not an avenue for revisiting the assessment in the hope that the court may consider the matter afresh in the absence of any legal error, of which I have found none (see the authorities cited in Paragraph 7 above).

27.  At the oral hearing the Applicant claimed that the political condition in Bangladesh was getting worse with murders taking place every day, and that due to the change in government and political issues if he went back now his life would not be secure.  These are vague, bare, and unsubstantiated claims.  Moreover, given the aforesaid analysis I do not see how they assist or are relevant to the issues before me. I hence reject them.

Conclusion

28.  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.

29.  For completeness, I also dismiss the applications made in the Form 86 for an extension of time, continuation of anonymity or sealing orders which the Applicant claims were made at the commencement of these proceedings, and for costs.  I do so as there is no need for an extension of time to be made, there were no anonymity or sealing orders made at the commencement of these proceedings (and there are no grounds put before me for such an application), and as there is no basis on which the Applicant should be awarded costs.

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