Babu Kha v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 3632/2019

[2025] HKCFI 2506

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 3632 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 only the Torture Claims Appeal Board/ Non-refoulement Claims Petition Office and the Director of Immigration as the Putative Respondent and as the Putative Interested Party respectively.

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

Observations for the Applicant:

Introduction

1.By Form 86 (“Form 86”) dated 5 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 3 December 2019 (“the Board’s Decision”) confirming the decisions of the Director of Immigration (“the Director”) dated 4 December 2015 and 21 August 2017 (“the Director’s Decisions”), which rejected his non-refoulement claim on all applicable grounds (“the Grounds”) under the USM.

2.I have amended Form 86 on my own motion to correctly name only the Board and the Director respectively as the proposed respondent and the proposed interested party.

Background

3.The Applicant’s personal background, his case, including the facts identified by him to show that his life would be in danger in Bangladesh, and the immigration and procedural history, etc. were set out in details in the Board’s Decision.  It is not necessary for me to reiterate them here.  For completeness’ sake, reference can be made to the Board’s Decision, the hyperlink to which is included below[1]. The Board’s abbreviations and descriptions are also adopted herein unless otherwise specified.

Discussion

4.I am not satisfied that the Applicant’s intended challenge of the Board’s Decision is reasonably arguable with any realistic prospects of success (see Peter Po Fun Chan v Winnie Cheung & Another (2007) 10 HKCFAR 676) and have therefore refused leave.

5.First of all, the Applicant has not identified any grounds of judicial review in Form 86, merely asserting in his supporting affirmation that the Board’s Decision was “unreasonable”, in failing to consider “all the matters”raised by him (“the First Ground”) and/or giving “adequate reasons” (“the Second Ground”). 

6.It is crucial that the grounds for judicial review must be clearly and succinctly set out in Form 86, as held in Ho Loy & Another v Director of Environmental Protection, HCAL 21/2015 (22 December 2016) at §142.  It is also trite that an applicant seeking leave to apply for judicial review has the duty to make full and frank disclosure as observed by Lam J (as he then was) in Re Leung Kwok Hung, HCAL 83/2012 (28 September 2012) at §35.  The relevant duty is an onerous one, extending beyond the disclosure of material facts to include potential legal answers to the claims of an ex parte applicant.  The fact that an applicant is acting in person does not exempt him from this duty, nor does it provide any justification for failing to fulfil it.

7.The First Ground is clearly unsubstantiated.

8.General assertions without specific particulars cannot constitute adequate and effective grounds to support judicial review (see Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578; Re Kharsu Numan [2019] HKCA 626; Re Salim Ahmed [2020] HKCA 244).

9.The burden is on the Applicant to pinpoint, with sufficient particularity, any errors allegedly committed by the Board. However, apart from asserting that the Board did not consider all the matters raised by him, the Applicant did not specify the precise materials allegedly overlooked by the Board.  It is insufficient for the Applicant only to make general allegations against the Board.  The Applicant also did not identify any specific errors in the Board’s Decision resulting from the alleged lack of consideration of his claim, nor did he provide any details suggesting that the Board acted unreasonably in reaching the decision.  At the oral hearing, the Applicant also has made no submissions whatsoever addressing or rectifying these issues.

10.As repeatedly emphasized by the Court, the assessment of evidence, country of origin information, risk of harm, state protection and viability of internal relocation, etc. are primarily within the province of the Board (and the Director).  Bearing in mind the enhanced standard to be adopted in scrutinizing the Board’s Decision in view of the seriousness of the issues involved, it is evident that the Board reached its conclusion based on the findings of fact it made on the available evidence[2] and after applying the relevant law and legal principles relating to the issues and the Grounds[3], of all which were matters falling squarely and exclusively within the province of the Board.

11.It is incumbent on the Applicant to make out his complaint of the procedural or public law error allegedly committed by the Board in the present case.  The Court is not required to come to a view on whether the Applicant would face any of the prescribed risks of harm upon return.  The Leave Application does not operate as rehearing of the appeal to the Board and the Court’s role is not to act as an avenue of further appeal from the Board.  I should not usurp the role of the Board where no public law ground for doing so is established by the Applicant (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).

12.The First Ground must therefore fail.

13.The Second Ground is equally unmeritorious, taking into account the well‑settled legal principles concerning the duty to give reasons (see Melemoko Ndiala Saint Juste Seguy Lionel v Torture Claims Appeal Board [2021] HKCA 608).

14.The Applicant’s complaint that Board did not provide adequate reasons is yet another assertion without specific or viable grounds, and it is unfounded and lacking in substance.

15.First, it is crucial to recognize that the adequacy of the reasons provided depends on the context in which the decision-maker is operating and the specific circumstances of the case.  In the present circumstances, as the Board determined that the Applicant’s non‑refoulement claim should fail on all applicable grounds while confirming the Director’s Decision, the adequacy of the reasons for such a determination must be assessed according to a standard that reflects the rigorous examination and anxious scrutiny required, given the seriousness of the matter at hand.

16.On the other hand, it must not be forgotten that the Board was the primary decision‑maker, who was both obligated and empowered to assess the evidence, determine the weight to be given to it, and make factual findings for the Applicant’s non-refoulement claim.

17.For the reasons set out and explained in the Board’s Decision, the Board was not satisfied that the Applicant had established the asserted facts and hence his claim.  The conclusion reached by the Board was one that it was entitled to make, based on the materials presented before it.

18.The Applicant did not demonstrate that the reasoning provided by the Board indicated any objective basis, nor would an objective reader believe that the Board had not adequately addressed the substantial issues regarding the Grounds before reaching its decision.  The question of adequacy must be approached sensibly, taking into account the overall context and all the available materials in this case.  I also add that it is not part of the Applicant’s case to argue that the reasons provided by the Board were ‘defective’ in substance.

19.Accordingly, the Second Ground should also be rejected.

Conclusion

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

Dated the 8^thday of July 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