Begum Amena v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 467/2020

[2025] HKCFI 2296

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 467 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 by the Applicant in open court;

Order by Deputy High Court Judge Levy:

The Leave Application be dismissed.

Observations for the Applicant:

Introduction

1.By prescribed Form 86 filed on 20 March 2020, the applicant applied for leave to apply for judicial review (“Leave Application”).  The intended judicial review was against the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) dated 12 March 2020 (“Board’s Decision”) dismissing the applicant's appeal against the decision of the Director of Immigration (“Director”) dated 7 December 2018 (“Director’s Decision”) rejecting the applicant's non-refoulement claim on all applicable grounds.  The Board’s Decision can be viewed at the following hyperlink: -

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000467_2020_files/the_Board's_Decision.pdf

2.The basis of the applicant’s claim is that she would be harmed or killed by Awami League members as her husband was a member and supporter of the rival Bangladesh Nationalist Party (“BNP”).  The Board’s reasoning and findings were set out in detail in the Board’s Decision and it is not necessary for me to repeat them.  Unless otherwise specified, I shall also adopt the Board’s abbreviations and descriptions stated in the Board’s Decision.

3.At the applicant’s request for a hearing of the Leave Application, this court scheduled a hearing on 23 April 2025.  The applicant attended the hearing in person.  After having heard from her, this court informed her that the decision would be reserved, and be sent to her updated address.

Discussion

4.The Leave Application operates as a ‘filtering’ process and there is no requirement or expectation to give elaborate reasons for my decision.[1]  It is sufficient to state my observations after considering the Board’s Decision and the applicant’s materials adduced.

5.In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly[2], and further to make full and frank disclosure of all material facts to be verified by an affidavit.   

6.In her Form 86 and supporting affirmation, the applicant did not raise any grounds for judicial review.

7.At the hearing, this court asked the applicant whether she had any grounds she wished to submit in support of the Leave Application.  She stated that she had nothing to say.  Despite the court’s reminding her that she has not provided any written grounds, the applicant still maintained that she has no grounds to provide to the court.

8.As the Courts have repeatedly stated, a finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality.[3]  In the present case, the Board found that much of the applicant’s evidence was hearsay or speculative.  It found that the applicant’s husband had not been active with the BNP for many years.  The Board found that after her husband’s move to Dhaka, the applicant has not claimed that her husband had faced any harm or threats from the AL or anyone else.  The Board therefore found that the risk that the AL would seek to target the husband is remote and speculative.  The Board concluded that the applicant would not face any real risk of harm, and rejected her appeal.  These are findings of fact, which the court in a judicial review will not interfere with, subject to there being any public law errors.

9.Bearing in mind the enhanced standard that should be adopted in scrutinizing the Board’s Decision, this court is satisfied that the Board correctly applied the law relating to all the grounds and observed a high standard of fairness in its Decision.  The applicant has not shown any errors of law or procedural unfairness or irrationality in the Board’s Decision either on papers or at the hearing before this court.  The applicant’s intended challenge to the Board’s Decision is not reasonably arguable with realistic prospects of success such that would enable this court to grant leave[4].

Order

10.The Leave Application be dismissed.

Dated the 6^thday of June 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