AKTER SABANA v. TORTURE CLAIMS APPEAL BOARD

HCAL 298/2020

[2025] HKCFI 2023

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 298 OF 2020

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 and the applicant being absent in open court;

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 21 January 2020”.

2.   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 3 March 2020, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Director of Immigration (“the Director”) or the Torture Claims Appeal Board ("the Board") dated 21 January 2020. 

2.  In relation to the applicant’s claim for non-refoulement protection, the Director made a decision on 30 October 2019 (“the Director’s Decision”), whereas the Board made a decision on 21 January 2020 (“the Board’s Decision”). It is clear that the applicant was referring to the Board’s Decision instead of the Director’s Decision in the Leave Application, as the Director’s Decision was superseded by the Board’s Decision and is no longer susceptible to judicial review (see Re Moshsin Ali, HCAL 2048 of 2018, dated 28.09.2022). 

3.  Thus, this court will only deal with the Board’s Decision in the Leave Application.  The Board’s Decision can be viewed in the following hyperlink:

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000298_2020_files/the_Board's_Decision.pdf

4.  The Board found that the applicant’s claims for non-refoulement protection were not made out on any of the applicable grounds under the Unified Screening Mechanism (“the USM”).  Hence, the Board confirmed the Director’s Decision.

Amendments

5.  The applicant wrongly named both the Board and the Director as the putative respondents and the putative interested parties in Form 86.  This court therefore makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board” and the name of the putative interested party to “Director of Immigration”.   

6.  As aforesaid, the decision in respect of which relief is sought in the Leave Application should be “Torture Claims Appeal Board’s decision dated 21 January 2020” and it is so amended on this court’s own motion.

The applicant’s case

7.  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.

8.  In sum, the applicant claimed for non-refoulement protection because she feared being harmed by her brother-in-law or his associates from a political party and/or a moneylender if she were to return to Bangladesh.  Her husband had a family dispute with her brother-in-law, as the brother-in-law wanted to get the family property and jewelry.  The brother-in-law had attempted to kill her husband and had raped her.  Further, she feared being harmed or killed by a moneylender as she was unable to repay the loan she took out from the moneylender.

Oral hearing

9.  The applicant requested for an oral hearing of the Leave Application. However, the applicant was absent at the hearing on 17 April 2025.

10.  After the hearing, the Notice of Hearing dated 1 April 2025 was returned by post to this court on 25 April 2025 with the remark “No such person”.  Upon further checking with the Director, the applicant’s reported address is still the same as the one used for sending the Notice of Hearing.

11.  By virtue of section 37ZA(2) of the Immigration Ordinance, Cap 115, the applicant is under a duty to notify the Director and the Board in writing of any change in her residential address and correspondence address in Hong Kong. Thus, if the applicant had indeed moved out of the reported address, she was in breach of this duty in not notifying the Director and the Board.

12.  The said duty is to ensure that the applicant remains contactable.  This court is of the view that the applicant was making herself uncontactable in failing to comply with this duty.  Without any reasonable excuse, the applicant can be deemed to be avoiding service of the Notice of Hearing in making herself uncontactable.

13.  Thus, even though the Notice of Hearing was returned by post, this court is entitled to proceed with the oral hearing and determination of the Leave Application.

14.  Moreover, as held in Re Abdus Salam [2019] HKCA 1091, an application for leave to bring judicial review should not be dismissed for want of prosecution merely because the applicant failed to attend the oral hearing of the leave application.  The correct approach is to treat the applicant as having withdrawn her request for a hearing by reason of the absence at the hearing, and to proceed to determine the leave application on its merits.

15.  This court will therefore proceed to consider the merits of the Leave Application based on the written materials before this court.

Grounds for judicial review

16.  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).

17.  The applicant asserted in Form 86 and her supporting affirmation dated 3 March 2020 that the Board’s Decision was unreasonable because the Board failed to carefully consider all the matters raised in her claims and/or give adequate reason for its decision.

Discussion

18.  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).

19.  In assessing the appeal by the applicant, the Board held an oral hearing on 18 December 2019.  The applicant was present and was given the chance to present her case and grounds of appeal to the Board in person.  The Board carefully examined her evidence and questioned the applicant for details.  It is therefore untrue that the Board did not carefully consider the matters that she raised in her claims. 

20.  As can be seen from the Board’s Decision, the Board gave very full and detailed reasons in rejecting the applicant’s claims.  The Board noted that the applicant had been inconsistent concerning the central elements of her claim, leading the Board to conclude that her account was not factual.  The mere fact that the Board did not believe the applicant cannot be regarded as unreasonable. 

21.  The assessment of evidence, country of origin information and risk of harm were primarily within the realm of the Board.  In view of the evidence available, the Board was not persuaded that she was threatened or raped by her husband’s brother and she had an unpaid debt to any creditor in Bangladesh. Thus, the Board found that there were no substantial grounds for believing that she would be subjected to any real risk if she were to be sent back to Bangladesh.  The Board is entitled to come to its own conclusion.  If the applicant is seeking to challenge the Board’s finding of facts, it is not permissible in an application for judicial review.

22.  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 error 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. 

23.  In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be a reasonably arguable claim which enjoyed 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

24.  For reasons aforesaid, 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