MIA RAJON v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 1222/2025

[2025] HKCFI 3485

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1222 OF 2025

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

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

1.  On this court’s own motion, the name of the 1^st putative respondent be amended to “Torture Claims Appeal Board”, and “Director of Immigration” be added as the putative interested party”.

2.  The applicant’s application for extension of time to file the application for leave to apply for judicial review be refused.

3.  The applicant’s application for leave to apply for judicial review in respect of both the decision of the Director of Immigration dated 22 March 2024 and the decision of the Torture Claims Appeal Board dated 26 July 2024 be dismissed.

Observations for the applicant:

The leave Application

1.  By way of Form 86 dated 21 May 2025 and filed on 27 May 2025, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of two decisions, namely:-

(1)  the decision of the adjudicator made on 26 July 2024; and

(2)  the decision of the Director of Immigration (“the Director”) dated 22 March 2024 (“the Director’s Decision”).

2.  The adjudicator in fact made the decision in his capacity as a member of the Torture Claims Appeal Board (“the Board”) on 26 July 2024. Thus, the first decision referred to by the applicant in Form 86 should be the Board’s decision dated 26 July 2024 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2025/HCAL001222_2025_files/the_Board's_Decision.pdf

3.  The Board found that the applicant’s claim failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board rejected the applicant’s appeal/petition and confirmed the Director’s Decision, which rejected the applicant’s non-refoulement claim.

Amendments

4.  In Form 86, the applicant named “Torture Claims Appeal Board / Non-refoulement Claims Petition Office” as the 1^st putative respondent and “Director of Immigration” as the 2^nd putative respondent.

5.  The Non-refoulement Claims Petition Office is just an office providing administrative and secretariat support to the adjudicators of the Board, and it should not be named as a putative respondent at all. Thus, on this court’s own motion, the name of the 1^st putative respondent is amended to “Torture Claims Appeal Board”.

6.  The applicant did not name any putative interested party in Form 86 when the Director should be so named. This court therefore makes an order on its own motion to add “Director of Immigration” as the putative interested party.

The Director’s Decision

7.  In Form 86, the applicant named the Director as the 2^nd putative respondent and the Director’s Decision was included as one of the decisions in respect of which relief is sought. It seems that the applicant is applying for leave to have judicial review in respect of the Director’s Decision apart from the Board’s Decision.

8.  However, only the Board’s Decision is reviewable by judicial process and not the Director’s Decision, as there are established statutory procedures of appeal from the Director to the Board and the applicant had invoked those procedures. The Director’s Decision was superseded by the Board’s Decision and is no longer susceptible to judicial review (see Re Moshsin Ali, [2018] HKCA 549).

9.  Thus, the Leave Application in respect of the Director’s Decision is dismissed. This court will deal with the Leave Application in respect of the Board’s Decision as discussed below.

Late application

10.  By virtue of Order 53, rule 4(1) of the Rules of the High Court, Cap 4A, the applicant had to make the Leave Application within 3 months when the grounds for the Leave Application first arose, ie when the Board’s Decision was made.

11.  However, the applicant filed Form 86 on 27 May 2025, which was more than 10 months after the Board’s Decision (made on 26 July 2024). The applicant was hence late for more than 7 months in making the Leave Application, and the applicant made an application for extension of time in his Form 86. Hence, this court has to consider whether there is any good reason to extend the time for the applicant to make the Leave Application.

12.  As held in AW v Director of Immigration [2016] 2 HKC 393, the criteria for granting an extension of time are:

(i)  the length of the delay;

(ii)  the reason for the delay;

(iii)  the merits of the intended application; and

(iv)  any prejudice to the putative respondent and to public administration.

13.  The applicant did not provide any explanation for the delay in making the Leave Application in Form 86, nor in his supporting affirmation filed on 27 May 2025. Thus, there was no justification for the delay given on paper.

14.  However, at the oral hearing before this court on 30 July 2025, the applicant explained that he was in detention all along even after his release from prison on 9 May 2025. He only knew that he could apply for judicial review when the Immigration Department informed him so in May 2025 when he was in its custody.

15.  This court accepts that his detention in prison and custody under the Immigration Department could be the reason for his delay in making the Leave Application. However, there is no merits of his intended judicial review as discussed below.

16.  Having considered the above criteria, this court is not prepared to grant any extension of time to file the Leave Application for the applicant to pursue a hopeless judicial review. Thus, the applicant’s application for extension of time to file the Leave Application is refused.

17.  The Leave Application can therefore be dismissed on the ground of being made out of time alone. However, for the sake of completeness, this court will still examine the merits of the Leave Application in respect of the Board’s Decision.

The applicant’s case

18.  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 Decision, which can be viewed in the hyperlink above.

19.  In sum, the applicant claimed for non-refoulement protection because if refouled to Bangladesh, members of the political party Awami League (“AL”) would harm or kill him as he was unwilling to leave AL’s rival party, Bangladesh Nationalist Party (“BNP”), to join AL.

Oral hearing

20.  The applicant requested for an oral hearing and his case was heard on 30 July 2025 (which was originally fixed on 29 July 2025 but adjourned to 30 July 2025 due to the black rainstorm warning issued on 29 July 2025).

21.  Before the hearing, the applicant sent a letter dated 17 July 2025 to this court requesting for a postponement of the oral hearing because of his health condition. In reply, this court requested the applicant to provide medical certificate to prove that he would not be fit to attend the hearing on 29 July 2025, otherwise the hearing would stand.

22.  The applicant did not provide any medical certificate to this court and hence this court proceeded with the hearing as aforesaid.

23.  At the hearing on 30 July 2025, the applicant again requested for an adjournment of his case because of his health condition. He alleged that he was mentally imbalanced and fainted while in the custody of the Immigration Department. He claimed that his brother died in a recent plane crash in Bangladesh and he was distressed because of that. He also claimed that he had memory loss because of his mental condition and he could not remember the details of his case. Thus, he asked this court to give him some time.

24.  However, he told this court that after he had fainted, he did see a doctor subsequently and the doctor told him to attend the court hearing first and would see him again after the court hearing. It seemed clear that the doctor must be of the view that the applicant was fit to attend the court hearing, otherwise the doctor would not have asked the applicant to attend the hearing first.

25.  Moreover, this court had the opportunity to observe the applicant in court and the applicant appeared perfectly normal to this court. He could understand the court’s questions to him through the interpreter and answer them clearly and spontaneously without any difficulty. In fact, he had written down what he wanted to tell this court about his case on papers in his own language and produced them when this court put some questions to him. The interpreter translated the contents of these papers to this court and they contained details of his case. This showed that the applicant’s alleged loss of memory could not be true as he could remember so much details and put them in writing.

26.  Thus, this court found that the applicant was perfectly fit to proceed with the hearing and refused to accede to the applicant’s request to adjourn the case.

Grounds for judicial review

27.  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).

28.  The applicant annexed a document to Form 86 with the title “Grounds on which relief is sought”. The contents of this document are reproduced as follows:-

“1. The gravamen of the Applicant’s complaint is that he has been aggrieved by the Adjudicator’s Decision.

2. The Applicant, being the aggrieved party directly affected by the above decision, has sufficient interest in the subject matter of this application to satisfy the requirements under Order 53, rule 3(7) of the Rules of the High Court, Cap. 4A.

3. Whilst it is accepted these matters were raised in the Notice of Appeal/Petition the high standards of fairness required under Secretary for Security v. Sakthevel Prabakar (2004) 7 HKCFAR 187 ought to have meant that they were given consideration especially as the Applicant was unrepresented at the Torture Claims Appeal Board/ Non-refoulement Claims Petition Office.

4. The Immigration Officer has failed to assess the Applicant’s situation, the internal relocation suggested by the Immigration Officer was not a reasonable that and it would be unduly harsh to do so.

5. Should the Immigration Officer have carefully considered all the material facts and documents before him, he would have reached a different conclusion.”

29.  At the oral hearing on 30 July 2025, when this court asked the applicant to elaborate the grounds as stated above, the applicant produced a document pre-written by him in his own language, which was interpreted to this court by the interpreter. The contents of this document were related to the background facts of the applicant’s case, but not elaboration of the above grounds. When this court asked the applicant again whether he had anything else to elaborate, he simply reiterated his wish to stay in Hong Kong or be sent to other countries but not Bangladesh, as he could not live in his own country.

30.  Thus, the applicant did not elaborate or give any particulars of the above grounds and did not give any further grounds for the Leave Application.

Discussion

31.  Paragraphs 4 and 5 of the applicant’s grounds as stated above were directed at the Director. Hence, they could not be used to challenge the Board’s Decision and can be simply ignored. This court will consider only those grounds directed at the Board in respect of the Board’s Decision. Thus, only paragraphs 1, 2 and 3 of the grounds are relevant to the Leave Application in respect of the Board’s Decision.

32.  In paragraphs 1 and 2 of the grounds, the applicant merely emphasized that he is the aggrieved party. Order 53, rule 3(7) of the Rules of the High Court, Cap. 4A stipulates that “The Court shall not grant leave unless it considers that the applicant has a sufficient interest in the matter to which the application relates.” There is no question that the applicant feels aggrieved by the Board’s Decision and has sufficient interest in the matter. However, apart from that, the applicant needs to advance valid grounds with specificity to challenge the Board’s Decision in an application for judicial review.

33.  In paragraph 3 of the grounds, the applicant alleged that the matters raised in his Notice of Appeal/Petition should be given consideration by applying high standards of fairness, especially when he was unrepresented before the Board.

34.  It appears that the applicant is complaining about the lack of legal assistance. However, the Court of Appeal has repeatedly emphasized that, as a matter of law, a non-refoulement claimant is not entitled to free legal representation at all stages of the process (see Re Zunariyah [2018] HKCA 14; Re Zahid Abbas [2018] HKCA 15; Re Tariq Farhan [2018] HKCA 17; and Re Lopchan Subash [2018] HKCA 37). Hence, there is no substance in this allegation.

35.  As held by the Court of Appeal in Re Salim Ahmed alias MD Salim [2020] HKCA 244, “general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case”. The applicant’s allegation that the Board did not consider the matters raised in his Notice of Appeal/Petition by applying high standards of fairness simply lacks particulars and cannot amount to any valid ground to challenge the Board’s Decision.

36.  In fact, as can be seen from the Board’s Decision, the Board had considered all the matters raised in the applicant’s Notice of Appeal/Petition. The applicant’s bare allegation in this regard cannot be substantiated at all.

37.  Thus, none of the aforesaid grounds could amount to any valid ground to challenge the Board’s Decision.

38.  During the oral hearing before this court, the applicant raised some new allegations concerning his case. He alleged that on 16 August 2023, a few people came to his house to hit him and his father told him to leave to go to somewhere else. When this court asked the applicant why he did not mention this incident to the Board, he said that he had already told the Director about this incident.

39.  However, this incident was not mentioned in both the Board’s Decision and the Director’s Decision. As can be seen from both the Board’s Decision and the Director’s Decision, the very first incident that the applicant mentioned about his case was the incident on 20 August 2023, when he was shopping at the market in his home village and he was intercepted by five strangers who demanded the applicant to quit BNP and join AL. It is just unbelievable for both the Board and the Director to have omitted this alleged incident on 16 August 2023 in their decisions, if the applicant had told them about it.

40.  The applicant also alleged that even though he had lost all the documents in support of his case, he had taken pictures of all these documents by using the mobile phone of his brother who died in the plane crash recently. He further alleged that his brother’s mobile phone was taken by his another brother who is now in Malaysia and he could obtain these pictures from his brother in Malaysia to produce to this court.

41.  As held in Trinh Thuy Huyen v Torture Claims Appeal Board [2024] HKCA 1090, the Board had no duty to make investigation into any matter without the applicant raising it and it should not be considered by this court at this stage. Hence, the applicant’s allegations at the oral hearing before this court cannot amount to any valid ground for the intended judicial review.

42.  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] HKCA 524).

43.  Thus, even though the applicant has failed to establish any valid ground for challenging the Board’s Decision, this court will still scrutinize the Board’s Decision for any errors of law, procedural unfairness or irrationality.

44.  In assessing the applicant’s appeal, the Board held an oral hearing on 21 June 2024. The applicant was given the chance to present his claims and evidence to the Board in person.

45.  After due consideration of the law and the evidence, the Board found that the applicant’s case was one where some local AL people tried to pressurize the applicant to quit BNP and to join AL. They had no intention to harm or kill the applicant, and the incident took place because the 2024 general election was approaching. The incident was one-off and time specific. The injuries the applicant sustained were not serious and did not attain a minimum level of severity.

46.  The Board noted the applicant’s belief that the police would not help him because they would side with AL people and country of origin information (“COI”) showed that corruption and abuse of power had been and continue to be problems affecting the police in Bangladesh. However, the Board also found from objective COI that the Bangladeshi government had taken steps to improve the performance of the police and had provided an institution to make it easier for members of the public to report corruption and lack of service.

47.  As to internal relocation, the Board again noted the applicant’s allegation that it was not a viable option for him. However, the Board found that there was no evidence to suggest the AL people in the applicant’s home village was resourceful enough to locate him had he moved to stay in another city other than his own. The Board found that internal relocation was permissible under the law of Bangladesh, and the applicant being a young man with 12 years of education could relocate to cities like Dhaka, Chittagong or Bogra to avoid the AL people in his locality.

48.  The Board concluded that the applicant could not establish that if refouled, he would face any Torture Risk[1], BOR 3 Risk[2], BOR 2 Risk[3] and Persecution Risk[4], and hence his claim for non-refoulement protection on all the applicable grounds under the USM failed.

49.  The assessment of evidence, COI materials and risk of harm was primarily within the sole ambit of the Board. The Board was entitled to come to its own conclusion. If the applicant is seeking to challenge the Board’s finding of facts, it is not permissible in an application for judicial review.

50.  This court finds nothing wrong or unreasonable in the way the Board reached its decision.

51.  Having rigorously examined the Board’s 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 errors of law, procedural unfairness or irrationality in the Board’s Decision. The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision.

52.  As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, for the court to grant leave to apply for judicial review, the claim has to be a reasonably arguable claim which enjoys 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

53.  For reasons aforesaid, the applicant’s application for extension of time to file the Leave Application is refused, and the Leave Application in respect of both the Board’s Decision and the Director’s Decision is 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