Hasan Mahamudul v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 3577/2019

[2025] HKCFI 1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 3577 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”) dated 2 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 27 November 2019 (“the Board’s Decision”) confirming the decision of the Director of Immigration (“the Director”) dated 19 September 2019 (“the Director’s Decisions”), which rejected his non-refoulement claim on all applicable grounds (“the Grounds”) under the Unified Screening Mechanism (USM).

2.I have amended Form 86 on my own motion to add the Director as the proposed interested party.

Background

3.It is unnecessary for me to restate the facts of the present case here. The Applicant’s personal background, his case and claim, including the incidents alleged by him to show that he would be harmed or killed by a group of Awami League People in Bangladesh, and the immigration and procedural history, etc. were set out in details in the Board’s Decision. For completeness’ sake, reference can be made to the Board’s Decision, the hyperlink to which is included below[1]. Unless otherwise specified, the Board’s abbreviations and descriptions are adopted herein.

Discussion

4.In support of his intended judicial review, the Applicant has made the following ‘observations’:

(1)  “I am a genuine Non-refoulement Claimant who faced all these dangerous problems and harassment and torture in my country. I am unable to find any place to stay safely in his country, so I fled abroad to save my life. I thinks [sic] I am the luckiest person who succeeded to escape from such danger and is still alive today.”

(2)  “I believe this Director of Immigration reached the wrong decision in assessing his USM claim. How come the Director of Immigration rejected my claim without any proper inquiry and without carefully understanding my situation? To understand my claim fairly, my immigration officers are invited to tour my country and ask those familiar with his case what real danger I would face if I am returned there.”

(3)  “If I didn’t run away, I certainly would have been killed by my enemies. My problems were getting more and more life-threatening day after day, I had no other choice but to escape to Hong Kong and seek asylum here.”

5.I am not satisfied that the Applicant’s intended challenge of the Board’s Decision, based on the matters above, is reasonably arguable with any realistic prospects of success (see Peter Po Fun Chan v Winnie Cheung & Another (2007) 10 HKCFAR 676).

6.First of all, the decision of an immigration officer is not a decision that is, within the administrative structure, susceptible to judicial review once an appeal to the Board is pursued by a claimant (see Re Moshsin Ali [2018] HKCA 549 at §45; Salvador Eric Garcia v Torture Claims Appeal Board/ Non-refoulement Claims Petition Office & Another [2020] HKCFI 166 at §14; Re Jyoti Gurung [2022] HKCA 1884 at §13, etc.)

7.Secondly, it must be recognized that the Board was the primary decision‑maker, empowered to evaluate the Applicant’s evidence and determine the appropriate weight to be given to them. It falls on the Applicant to make out his complaint regarding the procedural or public law error allegedly committed by the Board. It is not the duty of the Court to come to a fresh view on whether the Applicant would face any of the prescribed risks of harm. Unless and until the Applicant establishes irrationality or such other public law grounds in this case, the role of the Board should not be usurped (see Re Zunariyah [2018] HKCA 14, Re Qadir Sher [2018] HKCA 160, Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152, Re Rizwan alias Rizwan Gulistan [2018] HKCA 162, and Re Masoom Parvez [2018] HKCA 163).

8.However, none of the observations made by the Applicant discloses or identifies any errors of law or procedural unfairness or irrationality in the decision of the Board. The Applicant should not be allowed to use the present application as a rehearing of the appeal, or as an avenue to revisit arguments that had already been addressed by the Board.

9.Thirdly, the Board had made factual findings regarding the Applicant’s non-refoulement claim after the hearing, having adequately considered his individual allegations, the risk (or otherwise) of harm, the availability (or otherwise) of state protection and the viability (or otherwise) of internal relocation, etc., as well as all other relevant materials such as his personal circumstances and country of origin, etc. (see Satnam Singh v Director of Immigration & Another [2019] HKCA 433 at §11.1).

10.To avoid confusion, I have reminded myself that an enhanced standard must be adopted when scrutinizing the Board’s Decision, given the seriousness of the issues involved (see Re Zunariyah [2018] HKCA 14; Re Qadir Sher [2018] HKCA 160; Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Lakhwinder Singh [2018] HKCA 246 and Re Masoom Parvez [2018] HKCA 163).

Conclusion

11.For these reasons, I make an order that Form 86 be amended as described above and the Leave Application be dismissed.

Dated the 14^th day of May 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