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HCAL 3623/2019
[2025] HKCFI 2507
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 3623 of 2019
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BETWEEN
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Bappi Abdus |
Applicant |
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and |
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
Putative
Respondent |
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and |
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Director of Immigration |
Putative |
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Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following:
Order by Deputy High Court Judge (Non-refoulement Claims) Teresa Wu made on 12 February 2025:
The application for leave to apply for judicial review be dismissed.
Observations for the Applicant:
Introduction
1. By Form 86 (“Form 86”) dated 5 December 2019, the Applicant applies for leave to apply for judicial review (“the Leave Application”) of the decision of the Torture Claims Appeal Board/ Non-refoulement Claims Petition Office (“the Board”) dated 21 November 2019 (“the Board’s Decision”) confirming the decision of the Director of Immigration (“the Director”) dated 25 July 2018 (“the Director’s Decision”), which rejected his non-refoulement claim on the grounds of BOR 2 risk, BOR 3 risk and persecution risk under the Unified Screening Mechanism (USM).
Background
2. The Applicant’s personal background, the incidents alleged to show that he would be harmed or killed by the people of Awami League (AL) in Bangladesh, and the immigration and procedural history, etc. were set out in the Board’s Decision. It is not necessary for me to restate them here. For completeness’ sake, reference can be made to the Board’s Decision, the hyperlink to which is included below[1]. The Board’s abbreviations and descriptions are adopted below unless otherwise indicated.
Discussion
3. The Applicant is absent from the oral hearing. On the authority of Re Abdus Salam, CACV 125/2019 (judgment dated 3 October 2019) [2019] HKCA 1091, I proceed to deal with the Leave Application based on the materials placed before me.
4. After considering the Board’s reasons with rigorous examination and anxious scrutiny, applying an enhanced standard as required by law in view of the seriousness of the issues involved, I am not remotely satisfied that the Applicant’s intended challenge of the Board’s Decision is reasonably arguable with any realistic prospects of success at all: see Peter Po Fun Chan v Winnie Cheung & Another (2007) 10 HKCFAR 676.
5. The Applicant has plainly failed to identify any procedural or other public law errors allegedly committed by the Board for the Court to intervene by way of judicial review.
6. First, in the supporting affirmation, he merely makes vague and bare assertions that the Board failed to investigate his claim and consider his political, economic or social status without providing any specific details or elaboration.
7. Regarding his complaint of about the lack of legal representation, it is well‑established that a non-refoulement claimant is not entitled to free legal representation at all stages, and the high standard of fairness required by law does not entail interpretation service be made available whenever an applicant desires (see Re Zunariyah [2018] HKCA 14 at §18; Re Zahid Abbas [2018] HKCA 15 at §11 and Re Tariq Farhan [2018] HKCA 17 at §11). The following matters can be observed from the record:
(1) The Applicant arrived Hong Kong on 13 September 2007 and was granted permission to stay until 20 September 2007. He overstayed and was arrested on 24 October 2007. He then made a claim for non-refoulement relating to torture risk by way of written representation on 1 November 2007. He was released on recognizance on 14 November 2007. He subsequently submitted a Torture Claim Form to the Immigration Department on 4 September 2013, which was prepared with the assistance of a DLS lawyer. He attended an interview with an Immigration Officer in relation to his torture claim on 22 October 2013. The Director rejected his torture claim on 28 October 2013. He did not appeal that decision to the Board within the statutory time limit and his torture claim was finally determined.
(2) On 1 November 2013, he submitted a non-refoulement claim in relation to CIDTP by way of written representation. On 4 July 2018, he lodged a Supplementary Claim Form, again prepared with the assistance of a DLS lawyer. On 23 July 2018, he attended an interview with an Immigration Officer, claiming fear of harm from AL this time.
(3) The Director assessed his non-refoulement claim against BOR 2 risk, BOR 3 risk and persecution risk and rejected it on 25 July 2018. He filed his Notice of Appeal/Petition with the Board on 2 August 2018.
(4) He appeared before the Board on 6 May 2019 and was assisted by an interpreter in the Bengali and English languages.
(5) Even though he had no legal representation, the Board however assessed his non‑refoulement claim thoroughly and fairly.
8. The Board was entitled to make evaluations based on the evidence available and to decide the weight to be given to them. The role of the Court in a judicial review is not to provide a further avenue of appeal (see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524, etc.).
9. Accordingly, I make an order that the application herein for leave be dismissed.
Dated the 4th day of July 2025.
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( Allen LEE )
for Registrar, High Court
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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 to the Applicant
on 4/7/2025
Bappi Abdus
Applicant’s ref. no:
Nil |
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Sent 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 4/7/2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 12751/18/8/21/B1437
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 2353/18 (formerly: RBCZ/2001676/14) (T8S21)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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