Khatun Khushi v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 3641/2019

[2025] HKCFI 2035

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3641 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:

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

Observations for the Applicant:

Introduction

1.By Form 86 dated 6 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 8 November 2019 (“the Board’s Decision”) confirming the decision of the Director of Immigration (“the Director”) dated 28 November 2018 (“the Director’s Decision”), which rejected her non-refoulement claim on all applicable grounds (“the Grounds”) under the Unified Screening Mechanism (USM).

Background

2.The material facts of this case, including the Applicant’s personal background, the incidents alleged to show that she would be harmed, ill-treated or killed by her deceased husband’s family in Bangladesh, and the immigration and procedural history, etc. have been set out comprehensively in the Board’s Decision.  It is not necessary to repeat them all over again.  For completeness’ sake, reference can be made to the Board’s Decision, the hyperlink to which is included below[1]. Unless otherwise specified, I shall adopt the Board’s abbreviations and descriptions herein.

Discussion

3.In the supporting affirmation, the Applicant has raised the following grounds to support her intended challenge of the Board’s Decision:

(1)  “ The respondent had unlawfully fattered [sic] his/her discretion by refusing the applicant’s appeal on the grounds that they didn’t satisfy with the requirements.” (Ground 1)

(2)  “The respondent failed to meet the greater care and duty owned [sic] to a self-represented claimant.” (Ground 2)

(3)  “The respondent’s decision to refuse the applicant’s appeal were unreasonable or irrational in the public law sense, or are a result of procedural errors or unfairness.” (Ground 3)

(4)  “It must be keep [sic] in mind that the life and limb are in jeopardy and the applicant’s fundamental human rights not to be subjected to torture in [sic] involved.” (Ground 4)

(5)  “The Adjudicator acted in a procedurally unfair manner in dealing with applicant’s appeal.” (Ground 5)

(6)  “The applicant will face hardship if he is to return back to his/her home country and that the Torture Claims Appeal Board has significantly relied on the source of news which is not officially recognized, or it is simply hearsay.” (Ground 6)

(7)  “Torture risk – The applicant has the Torture risk in her home country. At the time of staying in Bangladesh the applicant was tortured by her enemies. Her enemies tortured her physically with brutal action. Her enemies are powerful persons because they are involved with the present ruling party named Awami League (AL). The applicant was involved with the Bangladesh Jammat-e-Islami (BJI) party which was banned by the present ruling party AL Government. So if the applicant return [sic] back to her home country she will be killed by the member of AL party. A case was filed against her by her enemies, so police are also looking for he [sic]. If police find he [sic] in Bangladesh police will arrest her and will torture her, even will kill her because of her involvement with the banned political party BJI.” (Ground 7)

4.I am not satisfied that any of these grounds is reasonably arguable with any realistic prospects of success at all (see Peter Po Fun Chan v Winnie Cheung & Another (2007) 10 HKCFAR 676).

5.First of all, Grounds 1 to 5, containing some selective keywords and phrases, are largely general and vague allegations only.  The Applicant has completely failed to provide the necessary factual basis to show how these claims apply to this case.  He has not shown how discretion was unlawfully restricted, how the greater care and duty owed to a claimant acting in person was unmet, or how the decision made was unreasonable or irrational.  Furthermore, the claims regarding procedural errors, unfairness or threats to life and limb simply lack specific details and clarity.  Without clear supporting facts, these grounds can hardly be considered valid. 

6.Grounds 6 and 7 essentially represent the Applicant’s challenge to the Board’s findings of fact under the guise of judicial review.  Furthermore, it is unclear which COI materials were unofficially recognized, considered hearsay, or outdated, and how the Board had failed to take into account the relevant COI materials or exhibited selectivity in their reliance on certain information. 

7.It is important for me to reiterate that the role of the Court in a judicial review is not to provide a further avenue of appeal.  While the Court should examine whether the procedure adopted by the primary decision maker meets the high standard of fairness, the merits of non-refoulement claim are essentially matters for the primary decision-maker to resolve (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, etc.). 

8.After reviewing all the evidence presented the Applicant and applying the relevant law and legal principles related to the issues and the Grounds, the Board concluded that he was not a witness of truth and rejected her evidence as not being credible.  As a result, there was no evidential basis to support her claim for non-refoulement.  The Board was, in any event, not satisfied that the Torture Risk, BOR 2 Risk, BOR 3 Risk, or Persecution Risk were substantiated.  The findings of fact were solely within the Board’s jurisdiction. The assessment of risks of harm was primarily the Board’s responsibility, and the Board was entitled to make evaluations based on the evidence available. 

9.Having considered the Board’s Decision with rigorous examination and anxious scrutiny, and applying an enhanced standard as required by law, it is evident that the Board had correctly set out the burden of proof and standard of proof, the law and key legal principles, and observed a very high standard of fairness.  I do not find, nor has it been sufficiently shown by the Applicant, that there was any error of law, procedural unfairness, or irrationality on the Board’s part. 

Conclusion

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

Dated the 15^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