Ahamed Hasib v. Torture Claims Appeal Board

HCAL 96/2020

[2025] HKCFI 2655

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 96 OF 2020

Application for leave to apply for judicial review
NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

	consideration of the documents only; or
	consideration of the documents andoral submissions by the applicant in open court;

Order by Deputy High Court Judge Michael WONG:

1.  On this court’s own motion, “Director of Immigration” be added as the putative interested party. 

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

Observations for the applicant:

The Leave Application

1.By way of Form 86 dated and filed on 9 January 2020, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board ("the Board") dated 13 December 2019 (“the Board's 2^nd Decision”).

2.On 13 March 2017, the applicant filed a notice of appeal/petition (“the Notice”) against the decision of the Director of Immigration (“the Director”) dated 25 January 2017 (“the Director’s 2^nd Decision”), which was out of time by 33 days.

3.In the Board’s 2^nd Decision, the Board refused the applicant’s application for late filing of the Notice.  Thus, the Leave Application is only in respect of the Board’s decision in refusing the applicant’s application for late filing of the Notice.

4.Previously, the Director made a decision dated 27 November 2014 (“the Director’s 1^st Decision”) rejecting the applicant’s claim for non-refoulement protection under the Unified Screening Mechanism (“the USM”).  At that time, the applicant’s claim was assessed on the grounds of Torture Risk[1], BOR 3 Risk[2] and Persecution Risk[3], but BOR 2 Risk[4] was not assessed.

5.The applicant lodged an appeal/petition to the Board on 10 December 2014. The Board gave a decision on 22 August 2016 (“the Board’s 1^st Decision”) rejecting the applicant’s appeal/petition and confirming the Director’s 1^st Decision.

6.In the Director’s 2^nd Decision, the Director rejected the applicant’s claim for non-refoulement protection as the applicant had failed to establish a personal and real risk of his absolute and non-derogable rights under the Hong Kong Bill of Rights, including BOR 2 Risk.

7.Thus, in filing the Notice, the applicant sought to appeal/petition against the Director’s decision in respect of his BOR 2 Risk, as the other risks had already been disposed of.

8.The Board’s 1^st Decision and the Board’s 2^nd Decision can be viewed in the following hyperlinks:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000096_2020_files/1st_Board's_Decision.pdf

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000096_2020_files/2nd_Board's_Decision.pdf

Amendment

9.In Form 86, the applicant did not name any putative interested party when the Director should be the putative interested party.  Thus, on this court’s own motion, “Director of Immigration” is added as the putative interested party.

The applicant’s case

10.It is not necessary for this court to repeat the details of the applicant’s case here as the same were set out in the Board’s two decisions, which can be viewed in the hyperlinks above.

11.In sum, the applicant claimed that if refouled to Bangladesh, he would be killed by his enemies from different political parties, namely the BNP, the JIP and the AL, as he was an executive member of the student wing of the Zaker Party (“ZP”).  He also feared that he would suffer ill-treatment because of the social work he carried out as one of the founders and a member of a charitable organization called the Protiva Samajik Songgathon (“Protiva”).

Grounds for judicial review

12.The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).

13.However, the applicant did not advance any ground for his intended judicial review in Form 86, nor his supporting affirmation dated 9 January 2020.  He merely stated in the affirmation that it was an “Affidavit for leave to apply for judicial review against the Director of Immigration as well as to refuse my torture claims. BOR-2 USM…”.

Oral hearing

14.The applicant requested for an oral hearing of the Leave Application, and his case was heard on 1 April 2025.

15.Apart from reiterating that his life would still be at risk if refouled, the applicant told this court that he now has a family in Hong Kong.  His wife and their two and a half years old son also do not have right of abode in Hong Kong.  The applicant said that the 3 of them have filed another non-refoulement claim as a family with the Director based on the same grounds as his own claim.  The claim is still pending determination.  The applicant requested this court to let them stay in Hong Kong until it is safe for all of them to return to Bangladesh.

16.However, what the applicant told this court at the oral hearing cannot amount to any valid ground for the intended judicial review.

Discussion

17.As aforesaid, the applicant sought to challenge the Board’s 2^nd Decision in refusing the applicant’s late filing of the Notice.

18.The applicant had given reasons in support of his application for late filing, ie he did not understand the Director’s 2^nd Decision as he was unable to understand English.  He was told that his claim under BOR 2 Risk had been rejected only when he went to sign his recognizance at the Castle Peak Bay Immigration Centre.  After that, his friends informed him that he needed to file an appeal/petition against the Director’s 2^nd Decision.

19.The Board was of the view that during the applicant’s stay in Hong Kong, he must have interacted with the Immigration Department on many occasions and must have been aware that the letters from the Immigration Department including the Director’s 2^nd Decision were important and relevant to his status in Hong Kong.  The applicant however took no immediate or timely steps to ask the Immigration Department or the Duty Lawyer Service what he should do in the circumstances.  Thus, the Board considered that the applicant’s reasons for the delay were not reasonable or satisfactory.

20.The Board also considered the factual basis of the applicant’s case as set out in the Board’s 1^st Decision to see if there might be any special circumstances, by reason of which, it would be unjust not to allow late filing of the applicant’s appeal/petition.

21.It is clear that the Board was applying subsections (2) and (3) of Section 37ZT of the Immigration Ordinance, Cap 115 (as then stipulated before their amendments in 2021) in its determination on whether to allow the applicant’s application for late filing of the Notice.

22.These provisions stipulated that the Board should take account of: (a) the statement of reasons stated in the application for late filing of the notice of appeal, and any accompanying documentary evidence in support; and (b) any other relevant matters of fact within the knowledge of the Board[5].

23.As held by the Court of Appeal, “any other relevant matters of fact within the knowledge of the Board” under the then section 37ZT(2)(b) of the Immigration Ordinance required the Board to take account of the merits of the appeal (see Re Khan Kamal Ahmed [2019] HKCA 377, Re Qasim Ali [2019] HKCA 430 and Re Villarosa Rhea Limbaga [2024] HKCA 95).

24.In other words, the Board must consider the merits of the applicant’s appeal/petition in the determination of whether the late filing of the Notice should be allowed or not.

25.From paragraph 22 of the Board’s 2^nd Decision, it can be seen that the Board did take into account the factual basis of the applicant’s case as set out in the Board’s 1^st Decision.  After such consideration, the Board concluded that there was nothing disclosed in the facts asserted by the applicant which might amount to special circumstances, by reason of which, it would be unjust not to allow late filing of the applicant’s appeal/petition.

26.It is implicit in the Board’s aforesaid consideration and conclusion that the merits of applicant’s appeal/petition had been considered.

27.The role of the court in judicial review is not to re-assess the non-refoulement claims afresh.  The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  The court will scrutinize the Board’s decision and intervene by way of judicial review only for errors of law, procedural unfairness or irrationality (see Nupur Mst v Director of Immigration[2018] HKCA524).

28.Having rigorously examined the Board’s 2^nd Decision, this court could detect no error of law, procedural unfairness or irrationality in the Board’s 2^nd Decision.

29.In PoFunChanvWinnieCheung (2007) 10HKCFAR676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be a reasonably arguable claim which enjoyed realistic prospects of success.  It is the view of this court that the applicant has failed to establish such a claim and hence leave must be refused.

Conclusion

30.For reasons aforesaid, the Leave Application is dismissed.

Dated the 24^th 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