KHATUN MST REHANA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 186/2020

[2025] HKCFI 1861

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 186 of 2020

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

Following:

	consideration of the documents only;            or
	consideration of the documents and oral submissions by the Applicant in open court

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

Observations for the Applicant:

Introduction

1.  By Form 86 dated 17 January 2020, 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 10 January 2020 (“the Board’s Decision”) confirming the decision of the Director of Immigration (“the Director”) dated 21 September 2018 (“the Director’s Decision”), which rejected her non-refoulement claim on all applicable grounds under the Unified Screening Mechanism (USM).

Background

2.  The material facts of this case, including the Applicant’s personal background, the incidents alleged in support of her claim that she would be ill-treated by her ex‑husband, fellow villagers, uncle and the police in Bangladesh, and the immigration and procedural history, etc. have been set out comprehensively in the Board’s Decision.  It is unnecessary to repeat them all over again.  For completeness’ sake, reference can be made to the Board’s Decision, the hyperlink to which is included below[1]. Unless otherwise specified, the Board’s abbreviations and descriptions are adopted herein.

Discussion

3.  First of all, I have rigorously examined and anxiously scrutinized the Board’s Decision, applying an enhanced standard as required by law (see Nupur Mst v Director of Immigration[2018] HKCA 524 at §14) in view of the seriousness of the issues at hand.  I am satisfied that the Board had correctly set out the burden and standard of proof, the law and key legal principles, assessed the evidence, COI materials, risk of harm, state protection and viability of internal relocation, and observed a very high standard of fairness. 

4.  The Board had reminded the Applicant that it was her duty to prove her case, and that refusing to answer questions to clarify her written statements may not be in her best interest.  Nevertheless, the Applicant confirmed that she did not wish to provide further information and requested the Board to simply make a decision based on what she had already submitted.

5.  After reviewing all the evidence and documents produced by the Applicant, the Board made the general observation that her case was short of details and particulars.  It appeared to the Board that the Applicant “was putting every possible ingredient to make up her case” (see §22 of the Board’s Decision):

(1)  The Board was simply unconvinced that the Applicant had proven, with sufficient evidence, that there was a real risk of torture upon her return to Bangladesh.  The availability of state protection and possibility of internal relocation would in any event alleviate such risk, if any (see §§37-45 of the Board’s Decision).

(2)  As the Board had rejected the Applicant’s evidence, it was not satisfied that she had shown “a genuine and substantial risk”.  It also did not find that the conduct of the Enemies had constituted torture or CIDTP, nor her life would be arbitrarily deprived under BOR 2(1) (see §§46-52 of the Board’s Decision).

(3)  The Board found that the Applicant’s fear of ill-treatment, if it existed, arose from her private dispute with the Enemies.  The primary facts presented by the Applicant, which were rejected by the Board, did not support a claim within the scope of RC.  Furthermore, even if the Applicant’s evidence were accepted, there was state protection, and internal relocation was an option.  The Board was not therefore satisfied that there was persecution risk (see §§53-56 of the Board’s Decision).

6.  It was primarily within the province of the Board to assess evidence, COI materials, risk of harm, state protection and viability of internal relocation.  The Applicant has failed to identify any valid grounds for judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21/2015 (22 December 2016) at §142).  Nor has she complied with her duty to make full and frank disclosure in this matter (see Re Leung Kwok Hung, HCAL 83/2012 (28 September 2012) at §35).

7.  In the absence of any errors of law, procedural unfairness, or irrationality, the Court would not reopen the Board’s findings or decide the case afresh.  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.

8.  As I am not at all convinced that the Applicant’s intended challenge to the Board’s Decision is reasonably arguable with any realistic prospects of success (see Peter Po Fun Chan v Winnie Cheung & Another (2007) 10 HKCFAR 676), I have therefore refused leave.

Conclusion

9.  I accordingly make an order that Form 86 be amended as described above and the Leave Application 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