SUMON v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 670/2020

[2025] HKCFI 4237

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 670 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 from the Applicant in open court;

1.   The Form 86 be amended on the Court’s own motion, naming only the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office as the Putative Respondent and only the Director of Immigration as the Putative Interested Party; and

2.   The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

Introduction

1.  The Applicant is from Bangladesh.  By a Form 86 dated and filed on 16 April 2020 (“Form 86”), he sought leave to commence a judicial review regarding a decision of the Torture Claims Appeal Board (“TCAB”)/Non-Refoulement Claims Petition Office (“NRCPO”) dated 3 March 2020 [1] (“the TCAB Decision”). The TCAB Decision was exhibited to the Applicant’s supporting affirmation, also dated and filed on 16 April 2020 (“the Affirmation”).  I will use the abbreviations and definitions from the TCAB Decision unless otherwise specified herein.

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

3.  I have amended the Form 86 of my own motion to reflect the identity of the proper putative Respondent and the proper putative Interested Party.

Background

4.  This is set out in the TCAB Decision.  I will not repeat the contents thereof, but in summary:

(1)  In October 2006 the Applicant raised a torture claim.  He then made non‑refoulement claims under the USM by an NCF dated 29 September 2014.  The claim was assessed on the grounds of Torture Risk[2], BOR 3 Risk[3], and Persecution Risk[4] and was rejected by the Director of Immigration (“Director”) in a decision dated 29 December 2015 (“Director’s Decision”);

(2)  The Director by a letter dated 5 December 2016 invited the Applicant to submit updated information regarding his non-refoulement claims and any information he wished in relation to BOR 2 Risk[5]. The Applicant failed to do so.  The Director then found, by a decision dated 5 January 2017 (“Director’s Further Decision”), that the Applicant had failed to establish BOR 2 Risk in relation to his non-refoulement claim;

(3)  On 18 January 2017 the Applicant filed a notice of appeal/petition to the TCAB/NRCPO, indicating that he wished to appeal in relation to all of the USM grounds;

(4)  From 28 June 2019, the TCAB/NRCPO made efforts to ask the Applicant why he had not filed an appeal in relation to the Director’s Decision in time.  The Applicant eventually appeared at a hearing before the TCAB/NRCPO on 7 November 2019; and

(5)  The TCAB/NRCPO handed down the TCAB Decision on 3 March 2020 in which it found that the Applicant’s claim for BOR 2 Risk was not substantiated and confirmed the Director’s Further Decision.  It also refused to allow what it considered to be the late filing of his appeal/petition in relation to the other three grounds (which had been determined in the Director’s Decision).

Legal Principles

5.  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).

6.  It is trite that the role of the Court in a judicial review is not to provide 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.  (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).

7.  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

8.  As the Applicant has not identified or set out any grounds of judicial review in the Form 86 or Affirmation, there is no allegation of any procedural unfairness in relation to, of any error of law in, and/or of any irrationality/failure to meet the enhanced Wednesbury test in, the TCAB Decision.

9.  However, 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 and bearing in mind the need for a high standard of fairness.

10.  The decision-maker set out the Applicant’s procedural and immigration history, the documents containing his claims for protection as made to the Director, and the details of such claims (Paragraphs 1 to 36).  She then explained the claims that the Applicant had made to the TCAB/NRCPO, and how she had sought to deal with such, including by correspondence and discussions at the hearing reflecting inter alia that his appeal had been filed in time as regards the Director’s Further Decision and BOR 2 Risk, but out of time in relation to the other three grounds as determined in the Director’s Decision (Paragraphs 37 to 52).

11.  The decision-maker then addressed BOR 2 Risk.  She accepted only that he was a citizen of Bangladesh and that his non-refoulement claims had been assessed against Bangladesh for the purposes of considering BOR 2 Risk.  On the evidence before her, and for reasons set out therein, she concluded inter alia that he was not a credible witness, that he had manufactured the claims made to the Director and the TCAB/NRCPO on different occasions, and that she did not accept his claims (i) in relation to his having apparently witnessed a murder and being pursued by the person who had committed it (ii) that he had fought with persons who had harassed his sister (iii) in relation to the BNP, and that he was associated in any way with the BNP or prior to that with the Awami League; and (iv) that an arrest warrant had been issued against him for which he had somehow managed to avoid arrest and abscond from Bangladesh (Paragraphs 53 to 70). These were core facets of his claim for non-refoulement relief on the basis of BOR 2 Risk.

12.  Accordingly, the decision-maker was not satisfied that the Applicant would be sought or harmed by any persons associated with the Awami League (the party in power and in opposition to the BNP), Shahidul Rahman Shahid (the Commissioner) or his associates, or any other persons.  As the decision-maker had also not accepted that an arrest warrant had been issued against the Applicant, she also did not accept that he would be charged, arrested, or imprisoned upon his return to Bangladesh.  BOR 2 Risk was hence not established as the she was not satisfied that the Applicant would suffer the death penalty, arbitrary deprivation of life, or genocide.  He had hence failed to substantiate BOR 2 Risk and was hence not entitled to non-refoulement relief on such basis (Paragraphs 71 to 73, 85).

13.  In relation to the question of the Applicant’s appeal/petition in relation to the other types of risk, the decision-maker set out the approach to late filing with regard to inter alia ss. 37ZS, 37ZT, and 37ZV Immigration Ordinance (CAP. 115)[6] and considered that as the appeal against those grounds (as dealt with in the Director’s Decision) had been lodged several months out of the prescribed timeframe, she would consider such as a late filing application.  She concluded that she was not satisfied that it was unjust not to allow the late filing, and in doing so had regard to the lack of a credible explanation for the lengthy delay, and to the merits of the case as known to her (see ss. 37ZT(2) and (3), also Qasim Ali [2019] HKCA 430 as cited by the decision-maker).  Accordingly, she decided to refuse the Applicant’s application to allow the late filing of his appeal/petition in relation to Torture Risk, BOR 3 Risk, and Persecution Risk, which had been determined in the Director’s Decision (Paragraphs 74 to 85).

14.  From my examination and scrutiny I do not see that the Applicant has any reasonably arguable case that there was 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 that vitiates the conclusions reached in the TCAB Decision, or that in any event justifies the grant of leave:

(1)  This is especially so as to the assessment, reasoning, and findings regarding credibility, evidence, risk of harm, which are all matters primarily within the province of the decision-making body, and as to BOR 2 Risk,; and

(2)  As for the remainder of the TCAB Decision, I do not see that the contents of the notice of appeal/petition amounted to a late filing application in relation to the Director’s Decision compliant with s. 37ZT(1)(a), and the decision-maker would have been entitled to dismiss such application outright (see Amir Hossen [2016] 2 HKLRD 662 at §§13-14).  While the late filing decision was reached after a hearing, I also do not see (and it has not been suggested) that the substantive conclusions reached are vitiated by any procedural unfairness.  Further and in any event, it would be academic to remit that portion to the TCAB/NRCPO, as the decision-maker would apply the current version of s. 37ZT(2) and (3) such that there would be no need to have regard to the merits (Cadnan Foose Maxamad 2022] HKCFI 429 at §§20-21; Ripon Mohammed [2022] HKCFI 592 at §34).  There is also no possibility that remittal would or might lead to a different outcome, regardless of whether the TCAB/NRCPO applied the pre- or post-amendment section, given the matters and findings of credibility and fact in, and also the evidence supporting the observations at Paragraphs 81 and 82 of, the TCAB Decision. The court hearing the intended judicial review would therefore inevitably refuse to grant such relief as it would be futile to do so, and leave should therefore be refused as there is no realistic prospect of relief being granted[7].

15.  There is hence no basis for the court to intervene by way of judicial review, and I am 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 dismiss the application for leave for judicial review and have made the orders set out above.

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