MOHAMMAD ALAMGIR HOSSAIN v. TORTURE CLAIMS APPEAL BOARD

HCAL 227/2020

[2025] HKCFI 3671

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 227 OF 2020

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 putative respondent be amended to “Torture Claims Appeal Board” and the name of the putative interested party be amended to “Director of Immigration”.

2.   The applicant’s application to withdraw the application for leave to apply for judicial review be refused.

3.   The applicant’s application for leave to apply for judicial review be dismissed.

Observations for the applicant:

The Leave Application

1.  By way of Form 86 dated and filed on 21 January 2020, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board (“the Board”) dated 10 January 2020 (“the Board’s 2^nd Decision”). 

2.   In fact, the Board gave two decisions in respect of the applicant’s claim for non-refoulement protection.  The Board’s 1^st decision was dated 9 November 2016 (“the Board’s 1^st Decision”).

3.  The Board’s 1^st Decision was dealing with the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 24 July 2014 (“the Director’s 1^st Decision”).  The Board’s 2^nd Decision was dealing with the applicant’s appeal/petition against the Director’s decision dated 17 January 2017 (“the Director’s 2^nd Decision”).

4.  Both the Board’s 1^st Decision and the Board’s 2^nd Decision can be viewed in the following hyperlinks:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000227_2020_files/1st_Board's_Decision.pdf

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000227_2020_files/2nd_Board's_Decision.pdf

5.  In the Director’s 1^st Decision, the Director assessed the applicant’s non-refoulement claim under the Unified Screening Mechanism (“the USM”) on all the applicable grounds including Torture Risk[1], BOR 3 Risk[2] and Persecution Risk[3]. However, BOR 2 Risk[4] was not assessed.

6.  The applicant appealed/petitioned against the Director’s 1^st Decision by filing a Notice of Appeal/Petition on 6 August 2014.  By the Board’s 1^st Decision, the Board dismissed the applicant’s appeal/petition.

7.  In the Director’s 2^nd Decision, the Director reviewed the applicant’s non-refoulement claim and in the absence of additional information, the Director considered that the applicant had failed to establish a personal and real risk of his absolute and non-derogable rights under the Hong Kong Bill of Rights being violated, including BOR 2 Risk.

8.  The applicant appealed/petitioned against the Director’s 2^nd Decision by filing a Notice of Appeal/Petition on 8 March 2017, which was out of time.  The Board allowed the applicant’s application for late filing of the Notice of Appeal/Petition.  A hearing was conducted on 27 December 2019 and the applicant was present.

9.  In the Board’s 2^nd Decision, the Board found that “the finding of the immigration officer cannot be a fault. The finding cannot be challenged since this appeal/petition is only against the finding of the immigration officer.”

10.  The Board also found that the Board’s 1^st Decision was “final and conclusive” and “cannot be challenged”, as it was res judicata. Thus, the Board dismissed the applicant’s appeal/petition against the Director’s 2^nd Decision.

11.  The Leave Application is only concerning the Board’s 2^nd Decision.

Amendments

12.  In Form 86, the applicant named the Board as the putative respondent but spelt its name wrong.  He also named “T.C.A.B” as the putative interested party.  However, the Director should be the putative interested party instead.

13.  Thus, on this court’s own motion, the name of the putative respondent is amended to “Torture Claims Appeal Board” and the name of the putative interested party is amended to “Director of Immigration”.

The applicant’s case

14.  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 two decisions, which can be viewed in the hyperlinks above.

15.  In sum, the applicant claimed for non-refoulement protection because he believed that the shop owner next door to his shop made a false accusation to the police implicating him in the kidnapping of two boys and the police tortured him while he was in their custody.  Hence, he feared that if refouled to Bangladesh, there would be future risk of harm or torture from the police or from the family of the two boys.

Withdrawal of the Leave Application

16.  By way of a letter dated 27 January 2025, the Director notified this court that the applicant wrote a letter dated 24 December 2024 to withdraw his judicial review application.  In the applicant’s said letter, the applicant stated that:-

“I want to withdraw my judicial review application under reference. Please withdraw all my cases in Hong Kong as I want to go back to my home country as soon as possible. My problem in my home country is solved and it is safe for me to go back home.”

17.  There is no evidence to show that the applicant made the above withdrawal application other than out of his own volition.  With this withdrawal application, it is clear that the applicant no longer wishes to proceed with the Leave Application. 

18.  However, the Court of Appeal had held in Re Manik Md Mahamudun Nabi [2022] HKCA 471 that:-

“The applicant on his own motion applied to the Court to withdraw his application for leave to apply for judicial review. The Judge acceded to his application, whereupon there was nothing outstanding in the action. The Judge was correct to conclude the action by ordering a dismissal of the application instead of leaving the action at large.”

19.  Thus, this court should deal with the Leave Application instead of leaving the action at large by granting leave to withdraw to the applicant.

Grounds for judicial review

20.  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).

21.  However, the applicant did not advance any ground for his intended judicial review in Form 86, nor in his supporting affirmation dated 21 January 2020. 

Discussion

22.  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).

23.  Thus, this court cannot re-assess the applicant’s case regarding his alleged danger in his home country.  However, despite that the applicant did not advance any valid ground for the intended judicial review, this court will scrutinize the Board’s 2^nd Decision for any errors of law, procedural unfairness or irrationality.

24.  Although the Board did hold an oral hearing for the applicant’s appeal/petition against the Director’s 2^nd Decision, the Board found that the Director’s 2^nd Decision only dealt with additional facts or information concerning BOR 2 Risk but the applicant did not supply any additional facts.  The Board also found that the applicant’s claim had been dealt with and adjudicated previously and was res judicata.  These were the reasons given by the Board in dismissing the applicant’s appeal/petition. The Board did not re-assess the applicant’s claim based on BOR 2 Risk and did not consider the merits of the applicant’s claim at all.

25.  The Board was clearly wrong in law in its reasoning for dismissing the appeal/petition.  As held by the Court of Appeal in Re Moshsin Ali [2018] HKCA 549, the appeal procedure from the Director to the Board “provided an opportunity for a complete review of the decision by the primary decision maker and that review is in the nature of a rehearing in the sense that it is not dependent an appellate error being demonstrated.  The appeal tribunal itself examines and considers all the materials and reaches its own view on the merits of the claim.  In doing so it will have regard to any additional materials the claimant may wish to place before it.”

26.  Thus, it was incorrect for the Board to rule that the applicant’s risks had been dealt with and adjudicated previously and was res judicata. The Board should have reviewed the applicant’s claim by way of a rehearing despite the fact that the applicant did not provide additional materials for its assessment.

27.  Further, it could be wrong in law for the Board to rely on the principle of res judicata in the Board’s 2^nd Decision.  First of all, the Board’s 1^st Decision was a re-assessment of the applicant’s claims based on Torture Risk, BOR 3 Risk and Persecution Risk only, but his BOR 2 Risk was not assessed.  Secondly, whether the Board is a judicial body where the principle of res judicata applies is arguable.

28.  However, as the applicant had confirmed by his letter dated 24 December 2024 that it would be safe for him to return to his home country, it is clear that he no longer needs non-refoulement protection and the Leave Application serves no practical purpose.

29.  It is well established that the court may exercise discretion not to grant a remedy on judicial review if it would serve no practical purpose, where it may have become otiose or pointless to grant a remedy because the relevant detriment to the applicant has been removed (see AW v Director of Immigration and William Lam, CACV 63 of 2015).

30.  Thus, even assuming that there were errors of law, procedural unfairness, or irrationality in the Board’s Decision and the case were remitted to the Board for reconsideration, there would simply be no more basis for the applicant to claim non-refoulement protection as it was no longer unsafe for him to return to his own country.  The Board should assess the risk of the applicant at the time of the proceedings, taking account of information that has come to light to ensure that it is able to make a “full and up-to-date assessment” of the current situation (see Ubamaka Edward Wilson v. Secretary for Security and Another (2012) 15 HKCFAR 743).

31.  It is therefore otiose and pointless to grant leave to the applicant to proceed with the intended judicial review, and hence the Leave Application ought to be dismissed.

32.  For the sake of completeness, this court noticed that the adjudicator, Mr Wesley Wong, signed the Board’s 2^nd Decision as “Adjudicator of the Non-refoulement Claims Petition Office” instead of “Member of the Torture Claims Appeal Board”.  This is not a correct description of his capacity, as he was not making the determination on behalf of the Non-refoulement Claims Petition Office.  The Non-refoulement Claims Petition Office is just an office providing administrative and secretariat support to the members of the Board and does not have the capacity to determine non-refoulement claims itself.

33.  Under the USM, the Chief Executive has delegated his powers under Article 48(13) of the Basic Law to members of the Board to hear and determine petitions in relation to claims made on all applicable grounds other than Torture Risk (see paragraph 3.7 of the Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme).  Thus, only the members of the Board have the powers to hear and determine the applicant’s petition.

34.  Nevertheless, the wrong description of his capacity does not nullify the Board’s 2^nd Decision, as Mr Wong was indeed a member of the Board and did have the power to determine the applicant’s petition.

Conclusion

35.  For reasons aforesaid, the application to withdraw the Leave Application is refused and the Leave Application 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