CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1681 of 2020
|
BETWEEN
|
| |
Md Yeasin |
1st Applicant |
| |
Md Yeasin Inshirah E Kibria Ansha |
2nd Applicant |
| |
and |
|
| |
Torture Claims Appeal Board/ |
Putative |
| |
Non-refoulement Claims Petition Office |
Respondent |
| |
and |
|
| |
Director of Immigration |
Putative |
| |
|
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 K.W. Lung:
1. Leave for the Applicants to apply for Judicial Review be refused; and
2. Non-compliance with Order 80, rule 2 of the Rules of the High Court in these proceedings be treated as a mere irregularity without rendering the 2nd applicant’s application a nullity.
Observations for the Applicant:
THE APPLICATION
1. The 1st applicant is the father (“the father”) of the 2nd applicant, his daughter, aged 12 (“the daughter”). They are illegal immigrants. The daughter was born in Hong Kong. Her mother and her elder sister are in another action HCAL 1682 of 2020. The cases were therefore ordered to be heard together. But there will be separate Form CALL-1 for each of the cases.
2. The applicants jointly apply for leave to apply for judicial review of the Decision dated 2 July 2020 of the Torture Claims Appeal Board (“the Board’s Decision”). Their joint application relies upon the facts of the father.
3. The applicants and the mother appeared before the Court on 28 January 2026.
The applicants
4. The applicants are nationals of Bangladesh. They are illegal immigrants.
5. The applicants lodged a non-refoulement claim, on the basis that, if refouled, they will be harmed or killed by the father’s creditor Harun Miah as he failed to pay back US$20,000 to him.
6. Details of the facts are set out in the Board’s Decision. See hyperlink. https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL001681_2020_files/the_Board's_Decision.pdf
The Director’s Decision
7. The Director had considered the applicants’ claim in relation to torture risk[1] and rejected the claim, he therefore further considered the following risks:
a. risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);
b. risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and
c. risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).
8. By way of the Director’s Decision dated 10 August 2017 (“the Director’s Decision”), the Director assessed the applicants’ claims jointly on all the above applicable grounds and dismissed their claims because they were unsubstantiated.
The Board’s Decision
9. The applicants appealed the Director’s Decision to the Board. On 27 June 2019, the Board conducted an oral hearing for their appeals. The applicants and the Director were legally represented. The father had given evidence.
10. Having considered the evidence, the Board made the findings below.
(1) The applicant’s evidence regarding Harun’s profile was lacking in credible detail. [84]
(2) The Board gave little or no weight on his evidence on his allegations that Harun was influential and he had committed murder cases in Bangladesh. [87]-[88]
(3) The Board gave no weight to his evidence that there was a warrant of arrest against him. [98]
(4) The Board did not accept that Harun had threatened or harassed any of the father’s family members. It did not accept that the Bangladesh authorities issued a warrant for his arrest as a result of the loan. [100]
(5) As the applicant said that he relied on his wife’s case, the Board considered the wife’s case and found that her evidence as to the core facts of her case was not acceptable.[103]-[104]
(6) The applicant will not face any real risk if he returns to Bangladesh. [105]
(7) A separate assessment of the daughter’s claim showed that there is not a real risk she would face any of the proscribed forms of harm should she be sent to Bangladesh. [111]
11. For the reasons above, the Board dismissed their appeal and confirmed the Director’s Decision.
Application for leave to apply for judicial review
12. The applicants filed Form 86 on 18 August 2020 for leave to apply for judicial review of the Board’s Decision.
13. In support of their application, the father has not raised any specific ground to challenge the Board’s Decision.
DISCUSSION
14. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicants’ appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526 CA, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).
15. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the father simply asked the Court to review the Board’s Decision.
16. The applicants were legally represented. It is obvious that the Board did not accept the father’s evidence on the core facts of the case. It had further considered the daughter’s claim separately and found that she will have no real risk of harm if she returns to Bangladesh.
17. The applicants have raised no reason for this Court to interfere with the Board’s Decision.
18. The applicants therefore fail to show that there is any realistic prospect of success in their proposed judicial review.
DISPOSITION
19. I refuse to grant leave to the applicants to apply for judicial review of the Board’s Decision. Accordingly, I dismiss their joint application.
20. I shall treat non-compliance with Order 80, rule 2 of the RHC in these proceedings as a mere irregularity without rendering the daughter’s application a nullity.
Dated the 3rd day of March 2026
| |
(Allen 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:
If leave has been granted, the Applicant or the Applicant’s solicitors must:
|
|
|
|
|
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)).
|
|
Sent to the Applicants
on 3/3/2026
Md Yeasin &
Md Yeasin Inshirah E Kibria Ansha
Applicant’s ref. no:
Nil. |
|
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 3/3/2026
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 8258/17/8/296/B948,
USM 8259/17/8/297/B949
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 3185/16 (Formerly RBCZ 2000775/14); QA T/C 462/17 (Formerly RBCZ 13220/15)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);