Akter Jesmin v. Torture Claims Appeal Board
Read the full judgment text of HCAL 302/2020 on BabelCite. This High Court CFI judgment was delivered on 22 July 2025.
1. By way of Form 86 dated and filed on 4 March 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 23 August 2019 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:-
Cites 5 cases
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HCAL 302/2020 [2025] HKCFI 2993 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 302 OF 2020
Application for leave to apply for judicial review NOTIFICATION of the Judge’s decision (Order 53, rule 3) Following:
Order by Deputy High Court Judge Michael WONG:
Observations for the applicant: The Leave Application 1.By way of Form 86 dated and filed on 4 March 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 23 August 2019 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:- 2.The Board found that the applicant was not entitled to non-refoulement protection in Hong Kong on any of the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board refused the applicant’s appeal/petition and confirmed the decision of the Director of Immigration (“the Director”) dated 27 November 2018 (“the Director’s Decision”). Amendment 3.The applicant did not name any putative interested party in Form 86. This court therefore makes an order on its own motion to add “Director of Immigration” as the putative interested party. Late application 4.By virtue of Order 53, rule 4(1) of the Rules of the High Court, Cap 4A, the applicant had to make the Leave Application within 3 months when the grounds for the Leave Application first arose, ie when the Board’s Decision was made. 5.However, the applicant filed Form 86 only on 4 March 2020, which was more than 6 months from the date of the Board’s Decision (made on 23 August 2019). The applicant was therefore late for more than 3 months in making the Leave Application. 6.This court has to consider whether the time for the applicant to make the Leave Application should be extended taking into account of the criteria laid down in AW v Director of Immigration [2016] 2 HKC 393, which are:
7.The applicant did not make any application for extension of time and provided no explanation for the delay in making the Leave Application on paper. Hence, there was no justification for the delay on paper. 8.During the oral hearing of her case before this court on 8 July 2025, the applicant explained that she was detained from 17 January 2018 to 13 March 2018. This court reminded her that the Board’s Decision was made on 23 August 2019 and hence her earlier detention was irrelevant. The applicant then said that she was again detained from 27 February 2019 to 26 March 2020. However, the Leave Application was filed on 4 March 2020, when the applicant was allegedly still in detention. The applicant then claimed that her friend helped her to file the Leave Application, but she signed on Form 86 dated 4 March 2020 and the supporting affirmation dated 23 January 2020 herself. 9.The applicant went on to say that no one told her about the Board’s Decision. The immigration officers only told her in December 2020 that the Board’s Decision had been made. As the Leave Application was filed on 4 March 2020 and her supporting affirmation was signed on 23 January 2020, it was implausible that the applicant was only informed of the Board’s Decision in December 2020. 10.The applicant’s explanations given at the oral hearing about the delay in filing the Leave Application were simply not credible. If she was detained during the 3-month period after the Board’s Decision was made and she could ask her friend to file the Leave Application on her behalf, then it should have been done during the 3-month period instead of leaving it to March 2020. Her detention could not explain her delay at all. 11.Moreover, there is no merits of the intended judicial review as discussed below. 12.Having considered the above criteria, this court is not prepared to grant any extension of time to the applicant to file the Leave Application, even if an application for extension of time was made. The Leave Application can therefore be dismissed on the ground of being made out of time alone. 13.However, for the sake of completeness, this court will still examine the merits of the Leave Application. The applicant’s case 14.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 Decision, which can be viewed in the hyperlink above. 15.In sum, the applicant claimed for non-refoulement protection because if refouled to Bangladesh, she feared members of the Awami League (“AL”) would cause her serious harm or kill her, and the Bangladeshi police would arrest her and frame her on false charges for hitting a member of AL who tried to rape her. Oral hearing 16.The applicant requested for an oral hearing of the Leave Application and her case was heard on 17 April 2025. The applicant was absent at the hearing, but she subsequently applied for another hearing because she was late for the hearing on 17 April 2025. This court acceded to her request and fixed another hearing on 8 July 2025. 17.Before the hearing, the Immigration Department sent a letter dated 23 May 2025 to inform this court that the applicant had written a letter dated 20 May 2025 to withdraw her judicial review application. As stated in the applicant’s said letter, the reason she gave for the withdrawal application was that she wanted to return to her home country as soon as possible, her issues in her home country had been solved and she could return home. 18.At the hearing on 8 July 2025, however, the applicant told this court that it is not true that she is safe to go home and her problems have not been solved. She applied for withdrawal of her judicial review application because of her health issues. She claimed that her liver is swollen and she is on medication. She is currently being detained and cannot obtain proper medical treatment. She applied to withdraw the Leave Application so that she could be released from detention. 19.The applicant also said that she did not want to apply for judicial review either. She was told by the Immigration Department that if she did not apply for judicial review, she would be deported. Hence, she made the Leave Application so that she could continue to stay in Hong Kong. 20.When the applicant was asked to give the grounds for her intended judicial review, apart from repeating that she had health issues and wanted to be released from detention, she had nothing further to say. 21.As the applicant confirmed at the hearing that the withdrawal was not genuinely made out of her own volition, the application to withdraw the Leave Application is refused. This court will deal with the Leave Application as discussed below. Grounds for judicial review 22.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). 23.The applicant did not provide any ground for the intended judicial review in Form 86. The applicant asserted in her supporting affirmation dated 23 January 2020 that she faced dangerous problems, harassment and torture in her country and she was unable to find any place to stay safely in her country. She believed the Director’s Decision was wrong because the Director rejected her claim without any proper inquiry and without carefully understanding her situation. She would be killed by her enemies if she did not run away and her problems were getting more and more life-threatening day after day. Discussion 24.First of all, only the Board’s Decision is reviewable by judicial process and not the Director’s Decision, as there are established statutory procedures of appeal from the Director to the Board and the applicant had invoked those procedures. The Director’s Decision was superseded by the Board’s Decision and is no longer susceptible to judicial review (see Re Moshsin Ali, [2018] HKCA 549). 25.Thus, this court will only consider the Leave Application in respect of the Board’s Decision. The applicant’s accusations in respect of the Director’s Decision are therefore irrelevant. If the accusations were directed at the Board, they are discussed below. 26.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] HKCA 524). 27.In assessing the appeal by the applicant, the Board held an oral hearing on 28 May 2019. The purpose was to allow the applicant a chance to present her case and grounds of appeal to the Board in person so that the Board could conduct a proper inquiry and better understand her situation. However, the applicant did not attend the hearing. 28.Upon her absence at the hearing, the Board sent a notice to the applicant on 30 May 2019 to inform her that she must submit to the Board a written explanation of her failure to attend the hearing together with any documentary evidence supporting her explanation within 7 days. 29.The applicant did not respond to the notice and the Board decided to determine the appeal/petition on paper based on all the available evidence. 30.It is therefore utterly untrue that the Board rejected her claim without any proper inquiry and without carefully understanding her situation. Quite the opposite, it was the applicant who did not seize the opportunity to assist the Board to conduct a proper inquiry and to obtain a better understanding of her situation. 31.As can be seen from the Board’s Decision, the Board gave very full and detailed reasons in rejecting the applicant’s claims. The Board was not satisfied with the credibility of the applicant’s claims and did not accept that she faced or would face harm of any nature in Bangladesh for any of the reasons she claimed. 32.Thus, the Board did assess the applicant’s alleged danger but found that there were no substantial grounds for believing that she would be subjected to any of the proscribed forms of harm, if she were to be sent back to Bangladesh. The Board was entitled to come to its own conclusion. If the applicant is seeking to challenge the Board’s finding of facts, it is not permissible in an application for judicial review. 33.The applicant was unable to provide any particulars or evidence to show that the Board committed any errors of law or there was any procedural unfairness or irrationality in the Board’s Decision. It is far from sufficient for the applicant to challenge the Board’s Decision by simply raising general and vague accusations without any detail or substance in support. Such accusations do not reveal any basis or ground for this court to intervene by way of judicial review. Her health issue cannot be a ground for the intended judicial review either. 34.It was not necessary for the Board to consider availability of state protection and viability of internal relocation, as the applicant’s claims and the matters giving rise to her claims for non-refoulement protection were rejected in their entirety. 35.It is a well-recognised principle that the decision-maker only needs to consider internal relocation if the applicant has established that she qualifies as a refugee pursuant to Article 1A(2) of the Refugee Convention (see Robinson v SSHD & Anor [1997] EWCA Civ 3090, dated 11.7.1997). In other words, internal relocation only arises if the applicant has established a real risk of persecution in her home area (see Gardi v SSHD [2002] 1 WLR 2755). 36.As it is the Board’s finding that the applicant had no real risk of any of the proscribed forms of harm, it is not necessary for the Board to consider internal relocation. 37.Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM, the burden of proof and the standard of proof. The Board also correctly identified the issues and observed a very high standard of fairness. This court could detect no errors of law, procedural unfairness or irrationality in the Board’s Decision. The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision. 38.In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, 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 39.For reasons aforesaid, the application to withdraw the Leave Application is refused, and the Leave Application is dismissed for being made out of time and also for devoid of merits. Dated the 22nd day 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
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Cases cited in this judgment