Miah Mamun v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 3630/2019

[2025] HKCFI 589

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 3630 of 2019

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;

Order by Deputy High Court Judge (Non-refoulement Claims) Teresa Wu:

1.  Form 86 be amended, naming the Director of Immigration as the Putative Interested Party.

2.  The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

Introduction

1.By Form 86 (“Form 86”) filed on 5 December 2019, the Applicant applies for leave to apply for judicial review (“the Leave Application”) of the decision of the Torture Claims Appeal Board/ Non-refoulement Claims Petition Office (“the Board”) dated 29 November 2019 (“the Board’s Decision”) confirming the decision of the Director of Immigration (“the Director”) dated 31 December 2018 (“the Director’s Decision”), which rejected his non-refoulement claim on all applicable grounds (“the Grounds”) under the Unified Screening Mechanism (USM).

2.In Form 86, the Applicant has mistakenly identified the Board as the proposed interested party. I have amended Form 86, on my own motion, to correct this.

Background

3.The material facts of this case, including the Applicant’s background, his case and claim, the incidents alleged by him to show that he would be tortured, ill-treated and killed in Bangladesh by people from Awami League (AL), and the procedural and immigration history, etc. have been set out comprehensively in the Board’s Decision. It is not necessary for me to repeat them all over again herein. For completeness’ sake, reference can be made to the Board’s Decision, the hyperlink to which is included below[1]. I will also adopt the Board’s abbreviations and descriptions unless otherwise specified.

Discussion

4.When considering the decision of the Board, I have reminded myself of the seriousness of the issue at hand and the enhanced standard that has to be adopted in scrutinizing its reasons and analysis (see Nupur Mst v Director of Immigration [2018] HKCA 524 at §14).

5.Based on the evidence available and after correctly identifying the relevant legal principles relating to the issues and the Grounds, the Board was not satisfied that there were Persecution Risk, BOR 2 Risk, BOR 3 Risk and Torture Risk as alleged (see §§68-98 of the Board’s Decision). The assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation were primarily within the province of the Board. In the present case, the Applicant has not shown that the Board committed any errors of law or there was procedural unfairness or irrationality in the Board’s Decision. It is plain that the Applicant has been unable to identify, in Form 86, his specific grounds of judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21/2015 (22 December 2016) at §14). It is insufficient for the Applicant to simply exhibit, in his supporting affirmation, a copy of the Board’s Decision, and reiterate his fear. An applicant in an ex parte leave application is required to observe the duty of full and frank disclosure (see Re Leung Kwok Hung, HCAL 83/2012 (28 September 2012) at §35). Such duty is an onerous one, requiring the applicant not only to verify all material facts known to him by affidavit, but also to disclose all potential legal answers to his claims.

6.As the materials provided by the Applicant do not demonstrate any basis or ground to challenge the legality, rationality or fairness of the process below, the Court should not usurp the role of the Board as the primary decision-maker (see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524). The role of the Court in judicial review is not to provide an additional avenue of appeal.

Conclusion

7.I am not satisfied that the Leave Application is reasonably arguable with any realistic prospects of success in these circumstances (see Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676).

8.I make an order that Form 86 be amended as described above and the Leave Application be dismissed.

Dated the 28^th day of March 2025

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