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HCAL 3893/2019
[2025] HKCFI 2598
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 3893 OF 2019
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Hossain Mollah alias Hossin |
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 apply for judicial review be dismissed.
Observations for the applicant:
The Leave Application
1. By way of Form 86 dated and filed on 31 December 2019, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of a decision of the Torture Claims Appeal Board ("the Board") dated 20 December 2019 (“the Board's 2nd Decision”).
2. The Board gave another decision in respect of the applicant’s case dated 9 March 2015 (“the Board’s 1st Decision”). Both the Board’s 1st Decision and the Board’s 2nd Decision can be viewed in the following hyperlink:-
https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003893_2019_files/1st_Board's_Decision.pdf
https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003893_2019_files/2nd_Board's_Decision.pdf
3. In the Board’s 1st Decision, the Board considered the applicant’s claim for non-refoulement protection based on 3 applicable grounds under the Unified Screening Mechanism (“the USM”), namely Torture Risk[1], BOR 3 Risk[2] and Persecution Risk[3], and found that the applicant had not substantiated a case under any of the said grounds. Hence, the Board confirmed the decision of the Director of Immigration (“the Director”) dated 24 June 2014, which rejected the applicant’s non-refoulement claim.
4. On 14 December 2016, the Director, on his own initiative, decided to canvass the issue of BOR 2 Risk[4], and invited the applicant to submit additional facts, if any, which the applicant considered relevant to his non-refoulement claim including BOR 2 Risk on or before 30 December 2016. However, the applicant did not reply to the Director to provide additional materials or facts.
5. On 10 January 2017, the Director, after reviewing the applicant’s claim and in the absence of additional information, considered that the applicant failed to establish a case under BOR 2 Risk.
6. On 25 February 2019, the applicant appealed against the Director’s decision made on 10 January 2017.
7. In the Board’s 2nd Decision, the Board dismissed the applicant’s appeal regarding BOR 2 Risk, and confirmed the Director’s decision dated 10 January 2017.
8. In the Leave Application, the applicant only applied for leave to apply for judicial review in respect of the Board’s 2nd Decision. There was no similar application made in respect of the Board’s 1st Decision.
The applicant’s case
9. 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 1st and 2nd Decisions, which can be viewed in the hyperlinks above.
10. In sum, the applicant claimed for non-refoulement protection because he feared being harmed or killed by the people of the Awami League (“AL”) if refouled to Bangladesh, as the Bangladesh Nationalist Party (“BNP”) was still being persecuted by AL and he supported BNP even though he had no political affiliation.
Oral hearing
11. The applicant requested for an oral hearing of the Leave Application, and his case was heard on 4 March 2025. The applicant was absent on 4 March 2025, but he wrote a letter dated 7 March 2025 to this court to request for another hearing. His case was therefore heard again on 8 April 2025 and the applicant was present this time.
12. The applicant said that he still had problems in his own country, but he also confirmed with this court that the Board had assessed those problems, and that he took out the Leave Application because he wanted to stay in Hong Kong. Apart from that, he had nothing further to say.
Grounds for judicial review
13. 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).
14. However, the applicant did not advance any ground for his intended judicial review in Form 86, nor his supporting affirmation dated 31 December 2019. He merely stated in the affirmation that it was an affirmation for leave to apply for judicial review against the decision of the adjudicator of Torture Claims Appeal Board as well as the Director of Immigration.
Discussion
15. First of all, only the Board’s decisions are reviewable by judicial process and not the Director’s decisions, as there are established statutory procedures of appeal from the Director to the Board and the applicant had invoked those procedures. The Director’s decisions were superseded by the Board’s decisions and are no longer susceptible to judicial review (see Re Moshsin Ali, [2018] HKCA 549). Thus, this court will only consider the Leave Application in respect of the Board’s 2nd Decision.
16. 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] HKCA524).
17. As the applicant did not advance any ground for his intended judicial review and confirmed at the oral hearing before this court that the Board had assessed his problems, this court will only consider the Board’s 2nd Decision by scrutinizing it for errors of law, procedural unfairness and irrationality.
18. However, in assessing the applicant’s second appeal, the Board relied on the finding of facts and the evidence before it in the first appeal. It is therefore necessary for this court to consider both the Board’s 1st Decision and the Board’s 2nd Decision.
19. For the first and second appeals, the Board held oral hearings on 18 November 2014 and 9 December 2019 respectively, and the applicant was present on both occasions.
20. In determining the first appeal, the Board carefully assessed and analysed all the evidence before it, including those matters asserted by the applicant and an abundance of reliable and the then updated country of origin information (“COI”). The Board was not satisfied that the alleged injury resulted from the attack attained a level of severity required for protection. The Board also found that there was no reliable evidence to suggest that AL was actually behind the acts of the gang or the assault by the masked attackers or that the assailants were vested with state authority.
21. In assessing the availability of state protection and the viability for the applicant’s internal relocation, the Board had referred to the COI for the applicant’s country from different sources. The Board considered that the applicant should be able to obtain assistance from state authorities if he needed it. The Board also concluded that the applicant could safely relocate to other places within Bangladesh without undue hardship. The first appeal was therefore dismissed by the Board after due consideration of the law and evidence.
22. For the second appeal, as aforesaid, the applicant did not respond to the Director’s request for additional evidence concerning his non-refoulement claim on all the applicable grounds under the USM, including BOR 2 Risk. Thus, the applicant did not provide any new evidence to the Board.
23. In dealing with the second appeal, although there was no new evidence to be analysed, the Board considered the applicant’s risk of life and found that he did not succeed in establishing his case under BOR 2 Risk. At the oral hearing, the applicant also told the Board that he had not committed any crime or act which would put him in danger of capital punishment without due process of law. Hence, the Board concluded that the applicant did not have a personal and real risk of his being subjected to BOR 2 Risk on his return to Bangladesh.
24. Moreover, in Kulwinder Kaur v Director of Immigration [2022] HKCA 48, the Court of Appeal held that “upon determining that there is no BOR 3 risk, there is no arguable ground for any BOR 2 risk”. This is the same situation here. As the Board had already found that there was no BOR 3 Risk, there was no arguable ground for BOR 2 Risk either. Thus, there can be no reasonably arguable claim based on BOR 2 Risk.
25. Having rigorously examined the Board’s 1st Decision and the Board’s 2nd 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 both decisions. Both decisions also satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decisions.
26. In Po Fun Chan v Winnie Cheung (2007) 10HKCFAR676, 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
27. For reasons aforesaid, the Leave Application is dismissed.
Dated the 24th day of June 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:
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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: 24 June 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: 24 June 2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
BOR 1171/19/2/2/B127
USM 53/14/7/15/B10
Director of Immigration
Putative interested party’s ref. no.:
RBCZ 9001100/16 (formerly RBCZ/674/10) (T7S32)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
[1] Risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.
[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 principle under Article 33 of the 1951 Convention relating to the Status of Refugees.
[4] Risk to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
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