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HCAL 557/2020
[2025] HKCFI 3672
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 557 OF 2020
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Md Abdul Halim |
Applicant |
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and
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Torture Claims Appeal Board
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Putative Respondent |
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and
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Director of Immigration
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Putative Interested Party |
Application for leave to apply for judicial review
NOTIFICATION of the Judge’s decision (Order 53, rule 3)
Following:
Order by Deputy High Court Judge Michael WONG:
1. The applicant’s application for leave to withdraw the application for leave to apply for judicial review be refused.
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 8 April 2020, 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 2 April 2020 (“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/2020/HCAL000557_2020_files/the_Board's_Decision.pdf
2. The Board found that the applicant’s claims for non-refoulement protection were not made out on any of the applicable grounds including BOR 2 Risk[1], BOR 3 Risk[2] and Persecution Risk[3] (but not Torture Risk[4]) under the Unified Screening Mechanism (“the USM”). Hence, the Board confirmed the decision of the Director of Immigration (“the Director”) dated 17 September 2018 (“the Director’s Decision”), which rejected the applicant’s non-refoulement claim.
3. The applicant had previously lodged a torture claim in 2013 and his torture claim was rejected by the Director. The applicant filed further claims after the introduction of the USM and his claim was assessed on the three Risks as mentioned above. It was therefore not necessary for the Board to deal with the applicant’s Torture Risk in the Board’s Decision.
The applicant’s case
4. 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.
5. In sum, the applicant claimed for non-refoulement protection because he feared that, if refouled to Bangladesh, he would be harmed by the ruling Awami League party since he was a member of the opposition Jamaat-e-Islami party.
Withdrawal of the Leave Application
6. By his latest affirmation dated and filed on 3 July 2025, the applicant made an ex parte application for leave to withdraw the Leave Application. The applicant stated in the affirmation that he wanted to go back to his country, so he wanted to withdraw his judicial review and he would go home as soon as possible.
7. There is no evidence to show that the applicant made the above withdrawal application other than out of his own volition. With this withdrawal application, it is clear that the applicant no longer wishes to proceed with the Leave Application.
8. 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.”
9. Thus, this court should deal with the Leave Application instead of leaving the action at large by granting leave to withdraw to the applicant. The applicant’s application to withdraw the Leave Application is therefore refused.
Grounds for judicial review
10. 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).
11. The applicant did not provide any ground for the intended judicial review in Form 86, nor in his supporting affirmation dated 8 April 2020. He merely stated in the affirmation that the Leave Application was filed against the decision of the Board as well as that of the Director.
Discussion
12. First of all, only the Board’s Decision is reviewable by judicial process and not the Director’s Decision. There are established statutory procedures of appeal from the Director to the Board and the applicant had invoked those procedures. The Director’s Decision was superseded by the Board’s Decision and is no longer susceptible to judicial review (see Re Moshsin Ali [2018] HKCA 549).
13. 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).
14. 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.
15. The applicant appeared before the Board on 24 January 2020 for an oral hearing. Thus, the applicant did have the opportunity to present his case to the Board in person.
16. The Board gave detailed analysis and reasoning for its conclusion that the applicant was not a witness of truth and that he had fabricated his claims in relation to his involvement in politics. Based on the gaps, inconsistencies and other problems with the evidence, and having carefully assessed the applicant’s claims, the Board rejected them, both individually and cumulatively, in their entirety. The Board therefore concluded that there was not a real risk the applicant would face any of the proscribed forms of harm should he return to Bangladesh.
17. Although the Board did not consider availability of state protection and viability of internal relocation, as the applicant’s claims and the matters giving rise to his claims for non-refoulement protection were rejected in their entirety, it was not necessary for the Board to consider the availability of state protection.
18. As to internal relocation, it is a well-recognised principle that the decision-maker only needs to consider internal relocation if the applicant has established that he qualifies as a refugee pursuant to Article 1A(2) of the Refugee Convention (see Robinson v SSHD & Anor [1997] EWCA Civ 3090, dated 11.7.1997). In other words, internal relocation only arises if the applicant has established a real risk of persecution in his home area (see Gardi v SSHD [2002] 1 WLR 2755).
19. As it is the Board’s finding that the applicant had no real risk of any of the proscribed forms of harm, it is not necessary for the Board to consider internal relocation.
20. The assessment of evidence, country of origin information and risk of harm was primarily within the realm of the Board. The Board was entitled to come to its own conclusion. This court finds nothing wrong or unreasonable in the way the Board reached its decision.
21. 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.
22. Thus, there is no merits in the Leave Application at all.
23. For the sake of completeness, this court noticed that the adjudicator, Mr Filip Gelev, signed the Board’s Decision as “Adjudicator of the Non-refoulement Claims Petition Office” instead of “Member of the Torture Claims Appeal Board”. This is not a correct description of his capacity, as he was not making the determination on behalf of the Non-refoulement Claims Petition Office. The Non-refoulement Claims Petition Office is just an office providing administrative and secretariat support to the members of the Board and does not have the capacity to determine non-refoulement claims itself.
24. Under the USM, the Chief Executive has delegated his powers under Article 48(13) of the Basic Law to members of the Board to hear and determine petitions in relation to claims made on all applicable grounds other than Torture Risk (see paragraph 3.7 of the Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme). Thus, only the members of the Board have the powers to hear and determine the applicant’s petition.
25. Nevertheless, the wrong description of his capacity does not nullify the Board’s Decision, as Mr Gelev was indeed a member of the Board and did have the power to determine the applicant’s petition.
Conclusion
26. For reasons aforesaid, the application to withdraw the Leave Application is refused and the Leave Application is dismissed.
Dated the 19thday of August 2025
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( Irene LEE )
for Registrar, High Court |
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
Notes for the applicant:
If leave has been granted, the applicant or the applicant’s solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent/Handed to the applicant/the applicant’s solicitors
on: 19 August 2025
Applicant’s ref. no:
Nil
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Sent/Handed to the putative respondent / the putative respondent’s solicitors / such putative interested parties as may be directed by the Court / the putative interested parties’ solicitors on: 19 August 2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 13567/18/9/328/B1555
Director of Immigration
Putative interested party’s ref. no.:
QA T/C3207/18
(formerly RBCZ 2002484/14)
QA T/C 911/13
(formerly RBCZ 352/13)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
[1] Risk of violation of right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[2] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[3] Risk of persecution with reference to the non-refoulement principles under Article 33 of the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol.
[4] Risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115
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