KHALILULLAH MD IBRAHIM v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 620/2020

[2025] HKCFI 3425

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 620 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;

Leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

Introduction

1.  The Applicant is a national of Bangladesh. By a Form 86 dated and filed on 14 April 2020 (“Form 86”), which was accompanied by a supporting Affirmation also dated and filed on 14 April 2020 (“the Affirmation”), the Applicant sought leave to commence a judicial review of:

a.  a decision of the Director of Immigration dated 21 December 2018 (“Director’s Decision”), which is not exhibited to the Affirmation; and

b.  a decision of the Torture Claims Appeal Board (“TCAB”)/Non-Refoulement Claims Petition Office (“NRCPO”) made on 3 April 2020 (“the TCAB Decision”)[1], which is exhibited to the Affirmation.

2.  Both decisions concerned and rejected the Applicant’s claim for non-refoulement relief on the basis of Torture Risk[2], BOR 2 Risk[3], BOR 3 Risk[4], and Persecution Risk[5]. The TCAB Decision was the result of the Applicant’s appeal/petition from the Director’s Decision. The Director’s Decision was also placed before and considered by the TCAB/NRCPO.

3.  The Applicant sought an oral hearing of his application, at which he said he had nothing to add.

Background

4.  The Applicant’s background and case as to the incidents underlying his claim for non-refoulement relief, and the immigration and procedural history leading up to the TCAB Decision, are set out in the TCAB Decision (in particular Paragraphs 1 to 6, 18 to 32), and in the Director’s Decision. For the sake of concision I will not repeat them, but in essence, and in addition to the portions already summarised above:

a.  The Applicant’s claim for non-refoulement relief stems from a fear that he will be harmed or killed by members of the Awami League, a political party in Bangladesh, which has a student wing named Chatra League;

b.  His claim for non-refoulement relief was assessed on the basis of Torture Risk, BOR 3 Risk, BOR 2 Risk, Persecution Risk and was rejected as not being substantiated in the Director’s Decision, against which the Applicant filed a Notice of Appeal/Petition on 31 December 2018; and

c.  An oral hearing of the appeal/petition took place before TCAB/NRCPO on 8 November 2019, which was attended by the Applicant.

5.  The TCAB/NRCPO subsequently handed down the TCAB Decision.

Legal Principles

6.  An applicant, even one acting in person, is required to identify the grounds of judicial review clearly and succinctly in the Form 86, and to fully and frankly disclose all material facts and potential legal answers (Ho Loy & Another v Director of Environmental Protection, unrep. HCAL 21/2015, 22 December 2016, Chow J. (as he was then) at §142; Leung Kwok Hung, unrep., HCAL 83/2012, 28 September 2013, Lam J. (as he was then) at §35; Begum Khadija [2018] HKCA 571; Khan Kamran, [2020] HKCA 380).

7.  It is trite that judicial review is not a further avenue of appeal, and that the Court should not usurp the role of the TCAB/NRCPO which is (and together with the Director are) the primary decision‑makers. The assessment of evidence, COI materials, and credibility, risk of harm, state protection and viability of internal relocation are primarily within the province of the TCAB/NRCPO and the Director, which are entitled to make evaluations based on the evidence available and to decide the weight to be given to them. While the Court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of the issue at hand, the court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the TCAB/NRCPO: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; Nupur Mst v Director of Immigration [2018] HKCA 524; Re Kartini [2019] HKCA 1022; Re Rupinder Singh [2021] HKCA 886.

8.  In order for me to give leave for judicial review, I have to be satisfied that there is an intended ground of review which is reasonably arguable, which is one that enjoys a realistic prospect of success (Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676). As a leave application of this sort is meant to be a filtering process, I am not expected to give elaborate reasons for my decision (see Re Zunariyah [2018] HKCA 14, at §23).

Discussion

9.  Firstly, the Applicant’s intended judicial review of the Director’s Decision hence has no prospect of success given the existence and implications of the two-tier system, and the lack of any exceptional circumstances before me justifying such an application (Moshsin Ali [2018] HKCA 549; Yeni Setyawati v Torture Claims Appeal Board [2019] HKCA 1310).

10.  Secondly, the documents filed by the Applicant contain only one phrase in the Form 86 which could be construed as a potential ground of judicial review, namely “inconsistent(sic) of decision”. This is vague, unparticularised, and totally unsatisfactory as a proper ground of judicial review as:

a.  The Applicant has not said whether the alleged inconsistency is said to be between the Director’s Decision and the TCAB Decision, and/or contained within the TCAB Decision;

b.  Given the existence and implications of the two-tier system, an alleged inconsistency between the Director’s Decision and the TCAB Decision does not necessarily amount to an arguable ground of judicial review; and

c.  In any event, the Applicant has failed to identify any specific the inconsistency, let alone any relevant public law error or reasonably arguable ground of judicial review arising in relation to such.

11.  Nevertheless, and given the seriousness of the issues at hand, I have considered the TCAB Decision with rigorous examination and anxious scrutiny, applying the enhanced Wednesbury standard.

12.  The TCAB Decision outlined the relevant procedural and immigration history, the procedure adopted at the oral hearing, and the relevant grounds (with reference to relevant case law and tests) to be considered (Paragraphs 1 to 17) before setting out the Applicant’s factual case in some detail (Paragraphs 18 to 32). The TCAB/NRCPO then went on to assess and make findings, and in doing so gave adequate reasons, as to the Applicant’s credibility and on salient events and considerations relating to the Applicant’s claim (Paragraphs 33 to 35).

13.  There was then assessment (with reference to the totality of evidence before the TCAB/NRCPO, its findings as set out earlier, and relevant COI referred to within the Director’s Decision) of the issues of state acquiescence, the availability of state protection, and Torture Risk, BOR3 Risk, BOR 2 Risk, and Persecution Risk. The TCAB/NRCPO found that none of the types of risk were established, and that the Applicant had failed to establish a valid claim for non-refoulement protection under each of the bases. Notably, it found that on the totality of the evidence it was not persuaded that the Applicant was in danger of being tortured, seriously harmed, subject to CIDTP, or that his right to life would be violated, if he were refouled to Bangladesh (Paragraphs 36 to 49). As for internal relocation, the decision-maker concluded (giving reasons for so doing) that even if there was any real risk of harm upon refoulement, it could be avoided or minimised by internal relocation (Paragraphs 50 to 54).

14.  Despite my examination and scrutiny I do not see that it is reasonably arguable that there is procedural unfairness (bearing in mind the need for a high standard of fairness), an error of law, and/or irrationality/failure to meet the enhanced Wednesbury test which vitiates the TCAB Decision. This is particularly so when the assessment of evidence, COI materials, credibility, risk of harm, state protection and viability of internal relocation are primarily within the province of the TCAB/NRCPO, which had before it and considered (as it was perfectly entitled to) relevant COI set out in the Director’s Decision.

15.  I am hence not satisfied that there are any reasonably arguable grounds for judicial review which enjoy a realistic prospect of success.

Conclusion

16.  In the circumstances, I have ordered that the 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