AKTHAR MST POPY v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

Introduction

1.  By a “Notice of application to apply for leave for judicial review” in the prescribed Form 86 filed on 20 November 2019, the applicant applied for leave to apply for judicial review (“Leave Application”).  The intended judicial review was against the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) dated 14 November 2019 (“Board’s Decision”) dismissing the applicant's appeal against a decision of the Director of Immigration (“Director”) dated 27 April 2018 (“Director’s Decision”) rejecting the applicant's non-refoulement claim on all applicable grounds.  The Board’s Decision can be viewed at the following hyperlink: -

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003439_2019_files/the_Board's_Decision.pdf

2.  The basis of the applicant’s claim was that if refouled, she would be harmed or killed by the people from Awami League and the Jamaat-e-Islamic in Bangladesh. The Board’s reasoning and findings were set out in detail in the Board’s Decision and it is not necessary for me to repeat them.  Unless otherwise specified, I shall also adopt the Board’s abbreviations and descriptions stated in the Board’s Decision.

3.  At the applicant’s request for a hearing of the Leave Application, this court scheduled a hearing on 26 August 2025.  The applicant attended the hearing in person.  After having heard from her, this court informed him that the decision would be reserved, and be sent to her updated address.

Discussion

4.  The Leave Application operates as a ‘filtering’ process and there is no requirement or expectation to give elaborate reasons for my decision.[1]  It is sufficient to state my observations after considering the Board’s Decision and the applicant’s materials adduced.

5.  In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly[2], and further to make full and frank disclosure of all material facts to be verified by an affidavit.    In the Form 86, the applicant broadly averred that the Board Decision was wrong and improper in requiring the applicant to respond to questions that she was not in a position to respond. It was further stated that the Board had acted unreasonably and procedurally unfairly by placing too much emphasis on the COI without taking into account of the applicant’s personal background and experience.

6.  At the hearing, this court asked the applicant whether she had any grounds she wished to submit in support of the Leave Application. The applicant stated that the political situation was still very unstable back home. Her life would be in danger if refouled.

7.  As the Courts have repeatedly stated, a finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality.[3] In the present case, the Board found that her evidence was all hearsay and it could not attach any weight to it. The Board found that even on the applicant’s account, the past ill‑treatment failed to attain the requisite level of severity. The Board believed that the applicant’s delay of 29 months in raising her non-refoulement claim had undermined her credibility. The Board concluded that the applicant failed to establish that if refouled she would be subjected to the risks of harm. The Board also found that both state protection and internal relocation would be reasonably available.  These are findings of fact, which the court in a judicial review will not interfere with, subject to there being any public law errors.

8.  Bearing in mind the enhanced standard that should be adopted in scrutinizing the Board’s Decision, this court is satisfied that the Board correctly applied the law relating to all the grounds and observed a high standard of fairness.  I am satisfied that Board was entitled to take into account the applicant’s delay in raising the refoulement claim when assessing her credibility.  The applicant’s written grounds are vague and do not condescend to particulars. Neither was the applicant able to advance any grounds at the hearing in support of the Leave Application.    The applicant has not shown any errors of law or procedural unfairness or irrationality in the Board’s Decision.  The applicant’s intended challenge to the Board’s Decision is not reasonably arguable with realistic prospects of success such that would enable this court to grant leave[4].

Order

9.  The applicant’s application for leave to apply for judicial review be 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