Akter Mosammoth Mosena v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 3729/2019

[2025] HKCFI 2459

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3729 of 2019

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and oral submissions by the Applicant in open court;

Order by Deputy High Court Judge (Non-refoulement Claims) Philips Wong:

1.  Form 86 be amended as follows:- (1) the Torture Claims Appeal Board / Non‑refoulement Claims Petition Office be named as the only Putative Respondent; and (2) the Director of Immigration be named as the Putative Interested Party; and

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

Observations for the Applicant:

Introduction

1.By Form 86 filed on 16 December 2019 (the “Form”), the Applicant applied for leave to apply for judicial review (the “Leave Application”) against the decision of the Torture Claims Appeal Board / Non‑refoulement Claims Petition Office (the “Board”) dated 27 November 2019 (the “Board’s Decision”).

2.In the Form, the Applicant has named both the Board and the Director of Immigration (the “Director”) as the proposed respondents. The Applicant has not named any proposed interested parties. As it is trite that the Board should be the proposed respondent and the Director should be the proposed interested party in an application of this sort, I make an order to amend the Form accordingly on the court’s own motion.

3.The Applicant requested an oral hearing for the application. The hearing took place on 10 March 2025. The Applicant attended in person.

Background

4.The Applicant’s background, the basis of her claim and the arguments she advanced had been set out in details in the Board’s Decision, and it is not necessary for me to repeat the same here. The hyperlink to the Board’s Decision is included below[1] for reference.

Discussion

5.The applicable legal principles relating to application of this sort are well established. The role of the Court in a judicial review is not to provide a further avenue of appeal. The primary decision makers are the Director and the Board. Though in non-refoulement cases, the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. Assessment of evidence, country of origin information (COI) materials, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The Court will not intervene by way of judicial review unless there are errors of law, procedural unfairness or irrationality in the decision of the Board. (See Nupur Mst v Director of Immigration [2018] HKCA 524, at §14)

6.In the Form, the Applicant did not state any grounds in support of the Leave Application. In the supporting Affirmation, the Applicant claimed that the Board had disregarded the danger and threats she would face in her country. At the hearing held on 10 March 2025, the Applicant said she wanted to wait until after the general election in Bangladesh. She also claimed that she has heart problem which requires surgery. She wanted to stay in Hong Kong until after the surgery. No documents have been adduced in support of her alleged medical condition.

7.I have considered the Board’s Decision in details. I do not find any error of law, procedural unfairness or irrationality. Neither has the Applicant been able to demonstrate any of the same. There is nothing to indicate that the Board had failed to take into account any relevant matters. The Board’s Decision was comprehensive with adequate reasons provided. In particular, the Board had properly analyzed the evidence given by the Applicant and came to the conclusion that this was purely a case of domestic violence, and that the claims did not satisfy the various requirements (see §§48-67 of the Board’s Decision). The Board was entitled to come to such findings. I do not see how the Board can be said to have disregarded the Applicant’s alleged danger and threats in the circumstances. The Board’s Decision satisfies the enhanced Wednesbury test and is not Wednesbury unreasonable or irrational.

8.I also do not regard the Applicant’s desire to wait for the general election in Bangladesh and her alleged medical condition as relevant consideration to the present Leave Application or to the claims before the Board.

9.I am not satisfied that the Applicant’s intended challenge of the Board’s Decision is reasonably arguable with any realistic prospects of success. Accordingly, I refuse to grant leave for judicial review.

10.Leave application of this sort is meant to be a filtering process and I am not expected to give elaborated reasons for my decision (see Re Zunariyah [2018] HKCA 14, at §23). Suffice for me to state that in reaching the decision, I have considered all the relevant documents before me.

Conclusion

11.In the premises, I make an order that the Form be amended as described above and the Leave Application be dismissed.

Dated the 10th day 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