Majhi Dolly v. Torture Claims Appeal Board

HCAL 3898/2019

[2025] HKCFI 3079

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 3898 OF 2019

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 and oral submissions by the applicant in open court;

Order by Deputy High Court Judge Michael WONG:

1.  The applicant’s 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 31 December 2019, 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 24 December 2019 (“the Board's Decision”). The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003898B_2019_files/the_Board's_Decision.pdf

2.The Board decided that the applicant’s claims for non-refoulement protection were not made out on any of the applicable grounds under the Unified Screening Mechanism (“the USM”), and confirmed the decision of the Director of Immigration (“the Director”) dated 23 April 2018 accordingly.

The applicant’s case

3.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.

4.In sum, the applicant claimed for non-refoulement protection because if refouled to Bangladesh, she would be harmed or killed by her uncle due to a land dispute between her father and her uncle, and also by an unnamed loan shark because of a loan taken out by her father. The loan shark had joined forces with her uncle. She alleged that her uncle had thrown acid to her father’s face, kidnapped her and sold her to a brothel. She also alleged that the loan shark’s henchmen had thrown acid on her sister’s shin, stomach and right eye from behind and her sister died as a result of the attack.

Applicant’s absence at the first oral hearing and her subsequent application for extension of time to appeal

5.The applicant requested for an oral hearing of the Leave Applicant and her case was heard on 25 February 2025. The applicant was absent at the hearing.

6.This court hence determined the Leave Application based on all the documents available and the decision was delivered on 2 April 2025, which dismissed the Leave Application.

7.By way of summons filed on 8 May 2025 (“the Summons”), the applicant applied for an extension of time to appeal against the order made on 2 April 2025.

8.The Summons was heard on 22 May 2025. This court set aside the order made on 2 April 2025 and the Summons was dismissed. The Leave Application was to be heard again and a new hearing was fixed on 8 July 2025.

Oral hearing on 8 July 2025

9.The applicant was present at the oral hearing on 8 July 2025 and confirmed that she would rely on the grounds she previously submitted.

10.The applicant was invited to elaborate on the grounds as they were very general. In reply, the applicant said that she could not return to her home country as her problems were still there. Her life would be in danger if she returned there. She was pregnant but suffered from miscarriage recently.

11.She also said that the dispute between her father and her uncle remained unresolved. She would still be in danger because her sister was killed and she could be killed as well. The Board did not consider her submissions properly and her case was not assessed with proper justice. She was not satisfied with the Board’s reliance on the country of origin information (“COI”) materials, which were only obtained from the internet, because they did not reflect the reality in her country.

Grounds for judicial review

12.The applicant advanced the following grounds for her intended judicial review in Form 86 and in her supporting affirmation dated 31 December 2019:-

(1)  The Board was in breach of procedural fairness in the following parts:

(i)  The Board had unlawfully fettered its discretion by refusing the applicant’s appeal on the grounds that they did not satisfy the requirement.

(ii)  The Adjudicator acted in a procedurally unfair manner in dealing with the applicant’s appeal.

(iii)  The Board’s decisions to refuse the applicant’s appeal were unreasonable or irrational in the public law sense or are a result of procedural errors or unfairness.

(iv)  The Board failed to meet the greater care and duty owed to a self-represented claimant.

(2)  The Board failed to give her a fair opportunity to keep forward her submissions in an oral hearing and to invite her to submit written submissions. Even if the Adjudicator had decided not to have an oral hearing, she should at least invite her to submit written submissions and evidence. The applicant was only asked to write grounds for appeal in the Appeal Form, but that will not count as an opportunity to reply to submissions made by the Director’s representatives.

(3)  The Board relied on the source of news which is not officially recognized or it is simply hearsay. It also relied on some cases which are fairly outdated considering the dramatic changes. The lack of credible source of information has resulted in them making groundless speculations that it is safe for the applicant to return to her country of origin.

13.The applicant made further written submission in support of the Leave Application by way of an affidavit sworn on 25 February 2025. Apart from repeating some of the grounds mentioned in Form 86 and the supporting affirmation, the applicant asserted further grounds in the said written submission as follows (which are numbered in sequence with the grounds asserted in the preceding paragraph):-

(4)  She disagrees with the decisions made by the Director and the Board. She does not think that her case has been determined fairly.

(5)  Without knowing how her case was determined, it is not easy for her to appeal against the decision. She believes there should have been a proper and fair mechanism that allows unrepresented litigants to understand more about their claim.

(6)  She was never provided with proper legal and language assistance. With her limitation in terms of resources, funding and language capabilities, it has been burdensome for a non-refoulement claimant like her to appeal against the decision. The determination of the appeal/petition has never been read to her in her own language. She believes such failures in providing proper assistance to non-refoulement claimants is procedurally unfair.

(7)  The discriminatory act of authorities towards non-refoulement claimants merely on the basis of quick disposed [sic] of cases is unacceptable and is determinate [sic] to the spirit of the judicial system.

14.At the oral hearing before this court, the applicant mentioned that the Board relied on COI materials which were only obtained from the internet and did not reflect the true situation in Bangladesh. This point was in fact covered in her ground mentioned in paragraph 13(3) above.

15.This court will proceed to consider the merits of all the grounds as aforesaid.

Discussion

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

17.Most of the grounds raised by the applicant are very general, vague and without any specificity. At the hearing, this court invited the applicant to clarify the grounds for her intended judicial review. However, the applicant did not elaborate by giving details to the aforementioned grounds. She merely repeated the danger and the matters that gave rise to her non-refoulement claims.

18.The applicant’s grounds for her intended judicial review can be summarized as follows:-

(1)  there was no oral hearing before the Board;

(2)  the applicant was not invited by the Board to submit written submissions and evidence;

(3)  the Board relied on unofficial source of news, hearsay and outdated cases as COI materials which were obtained from the internet. The COI did not reflect the true situation in Bangladesh;

(4)  the applicant was not provided with proper legal and language assistance;

(5)  the applicant did not know how her case was determined and hence it was not easy for her to appeal against the decision;

(6)  no one read the determination of the appeal/petition to her in her own language; and

(7)  the quick disposal of cases is discriminatory towards non-refoulement claimants.

19.First of all, it is not true that there was no oral hearing before the Board. The Board held an oral hearing on 8 March 2019 to assess the applicant’s appeal/petition and the applicant appeared in person.

20.It is also not true that the applicant had no language assistance. At the hearing, the applicant was assisted by an interpreter in Bengali language, which is the applicant’s language.

21.In fact, the Board questioned the applicant in detail about the incidents that she claimed to have led her into fear of harm. The applicant did provide answers to the Board’s questions.

22.Thus, contrary to what the applicant alleged, she was given the chance to present her case and grounds of appeal to the Board in person and in her own language at an oral hearing.

23.The applicant alleged that the Board did not invite her to give written submissions and evidence. However, the applicant had lodged a Non-refoulement Claim Form dated 28 February 2018, which was prepared with assistance of a lawyer from the Duty Lawyer Service and gave details of her case. The applicant also submitted some documents and photos in relation to her sister’s attack and death at the interview with the Immigration Department, and she claimed to have no further documents to submit.

24.If the applicant did have further written submissions or evidence to submit to the Board, she could have done so at the oral hearing before the Board, just like what she did in providing further documents and photos at the interview with the Immigration Department. It is the applicant’s duty to establish her claims before the Board and she should present whatever evidence and submissions, written or oral, so as to satisfy the Board that she was entitled to non-refoulement protection. It is not right to suggest that the Board had to invite her to submit written submissions and evidence before she would do the same.

25.In fact, during the oral hearing before the Board, the applicant raised new matters to the Board, which allegedly were attempts to kidnap her in different cities other than her home village. When the applicant could raise these new matters to the Board, it is simply untrue that she had no opportunity to give further written submissions and evidence to the Board just because of the lack of invitation from the Board.

26.The allegation that the Board relied on materials and information that were unofficial source of news, hearsay and outdated cases lacks specificity. The applicant did not identify which pieces of information and materials she alleged were wrong for the Board to rely on. On the contrary, all the information and materials referred to by the Board were properly identified, and the Board did refer to the then most updated COI materials from reliable third country sources. Thus, there is simply no substance in the applicant’s allegation in this regard. There was also nothing wrong for the Board or the Director to obtain COI materials from the internet when they were properly identified. The applicant failed to specify how and why the COI materials did not reflect the reality in Bangladesh. Her sister’s death could not be proof that the COI materials used by the Board were wrong.

27.As to the allegation that there was a lack of legal assistance, a lawyer from the Duty Lawyer Service did assist the applicant in the preparation of her Non-refoulement Claim Form. The Court of Appeal has repeatedly emphasised that, as a matter of law, a non-refoulement claimant is not entitled to free legal representation at all stages of the process (see Re Zunariyah [2018] HKCA 14; Re Zahid Abbas [2018] HKCA 15; Re Tariq Farhan [2018] HKCA 17; and Re Lopchan Subash [2018] HKCA 37). Again, there is no substance in this allegation.

28.Likewise, it is trite that the high standard of fairness required by law would not entail an interpretation service being made available at any time the applicant desires (see Re Gurnishan Singh [2018] HKCA 704 and Re Gurung Sagar [2019] HKCA 658). The applicant’s allegations that she did not know how her case was determined and hence it was not easy for her to appeal against the decision and that no one read the determination of the appeal/petition to her in her own language simply cannot help her. Moreover, it is noted that all the documents filed by the applicant in relation to the Leave Application were written in English. It indicates clearly that the applicant is either familiar with the English language or she has access to such language assistance if needed. The applicant cannot claim that she has been prejudiced at all.

29.It is utterly untrue that the Board disposed of her case quickly and was discriminatory towards her. The oral hearing was held on 8 March 2019 and the Board gave the Board’s Decision on 24 December 2019. It means that the Board took more than 9 months to consider the applicant’s case, which can hardly be regarded as quick disposal. The Board in the Board’s Decision gave very detailed discussions and analysis of the applicant’s case, which shows that the Board did consider the applicant’s case very carefully and thoroughly. There is simply nothing to show that the Board was discriminatory towards the applicant.

30.As can be seen from the Board’s Decision, the Board gave very full and detailed reasoning in rejecting the applicant’s claims. The Board noted significant discrepancies, inconsistencies and omissions in her accounts on the alleged acid attack and subsequent death of her sister, the alleged kidnap and sale of her to a brothel by her uncle, the debt owed by her father to a loan shark and how she came to work in Hong Kong, etc. The mere fact that the Board did not believe the applicant cannot be regarded as a discriminatory act towards her.

31.Thus, the allegation that the Board had a quick disposal of the applicant’s case and was discriminatory towards her cannot be sustained at all.

32.Furthermore, as held by the Court of Appeal in Re Salim Ahmed alias MD Salim [2020] HKCA 244, “general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case”. Thus, none of the aforesaid grounds could establish any valid ground to challenge the Board’s Decision when they are so vague and general without any requisite particulars related to the applicant’s case.

33.The Board did carefully and thoroughly re-assess the applicant’s claim on all the applicable grounds under the USM. After due consideration of the law and the evidence as presented by the applicant (including those related to the land dispute and the death of the applicant’s sister which were raised to this court at the oral hearing), the Board found that the applicant was not a reliable witness and there was no real risk of torture, ill-treatment, arbitrary deprivation of life or persecution to her. Hence, the Board concluded that the applicant was not entitled to non-refoulement protection based on any of the applicable grounds under the USM.

34.The Board did not consider availability of state protection and viability of internal relocation. However, as the applicant’s claims and the matters giving rise to her claims for non-refoulement protection were rejected in their entirety, it was not necessary for the Board to consider the availability of state protection.

35.As to internal relocation, 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.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).

38.Thus, the assessment of evidence, COI materials and risk of harm were primarily within the sole ambit of the Board. The Board is 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. This court finds no errors of the Board in reaching its decision based on all the evidence before it.

39.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.

40.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

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

Dated the 22^nd 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

Form CALL-1