Khatun Taslima v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 573/2020

[2025] HKCFI 3063

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 573 of 2020

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) YW Hew:

1.   The Form 86 is amended on the Court’s own motion, naming only the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office as the Putative Respondent, naming only the Director of Immigration as the Putative Interested Party, adding “Torture Claims Appeal Board/Non-Refoulement Claims Petition Office” after the words “Decision made by”, and replacing the number “2019” with the number “2020”;

2.   Leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

Introduction

1.The Applicant is a national of Bangladesh. By a Form 86 dated and filed on 9 April 2020 (“Form 86”), which was accompanied by a supporting Affirmation also dated and filed on 9 April 2020 (“the Affirmation”), she sought leave to commence a judicial review of a decision of the Torture Claims Appeal Board (“TCAB”)/Non-Refoulement Claims Petition Office (“NRCPO”) which the Form 86 identifies as having been made on 26 March 2019.

2.It is clear, however, that the relevant decision was one made of the TCAB/NRCPO dated 26 March 2020 (“TCAB Decision”) [1], as that is exhibited to the Affirmation, and concerned and rejected the Applicant’s claim for non-refoulement relief on the basis of Torture Risk[2], BOR 2 Risk[3], BOR 3 Risk[4], and Persecution Risk[5].

3.The Applicant sought an oral hearing of his application, at which she said she had nothing else to say.

4.In the circumstances, I have amended the Form 86 of my own motion to identify the proper putative respondents, the proper putative interested party, and to properly identify the nature and date of the TCAB/NRCPO Decision.

Background

5.The Applicant’s background and case as to the incidents underlying her claim for non-refoulement relief, and the immigration and procedural history leading up to the TCAB Decision, are set out in the TCAB Decision (Paragraphs 1 to 10) and the Director’s Decision (defined below). For the sake of concision I will not repeat them, but in essence, and in addition to the portions already summarised above:

a.  The Applicant’s claim for non-refoulement relief stems from a fear that she, as a supporter of the Jamaat-e-Isalmi (“JEI”) and also of the Bangladesh National Party (“BNP”)[6], will be harmed or killed by members and supporters of the Awami League (“AL”)[7];

b.  The Director of Immigration (“Director”), in his decision dated 27 September 2017 (“Director’s Decision”), assessed her claim for non-refoulement relief and rejected it as not being substantiated on the basis of Torture Risk, BOR 3 Risk, BOR 2 Risk, and Persecution Risk;

c.  The Applicant hence sought relief from the TCAB/NRCPO by way of an appeal/petition dated 9 October 2017; and

d.  The TCAB/NRCPO held an oral hearing on 28 September 2018. The Applicant attended the oral hearing and gave evidence at it.

6.The TCAB/NRCPO subsequently handed down the TCAB Decision.

Legal Principles

7.An applicant, even one acting in person, is required to identify the grounds of judicial review clearly and succinctly in the Form 86, and to fully and frankly disclose all material facts and potential legal answers (Ho Loy & Another v Director of Environmental Protection, HCAL 21/2015, 22 December 2016, at §142).

8.It is trite that judicial review is not a further avenue of appeal, and that the Court should not usurp the role of the TCAB/NRCPO which is (and together with the Director are) the primary decision‑makers. The assessment of evidence, COI materials, and credibility, risk of harm, state protection and viability of internal relocation are primarily within the province of the TCAB/NRCPO and the Director, which are entitled to make evaluations based on the evidence available and to decide the weight to be given to them. While the Court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of the issue at hand, the court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the TCAB: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; Nupur Mst v Director of Immigration [2018] HKCA 524; Re Kartini [2019] HKCA 1022; Re Rupinder Singh [2021] HKCA 886.

9.In order for me to give leave for judicial review, I have to be satisfied that there is an intended ground of review which is reasonably arguable, which is one that enjoys a realistic prospect of success (Peter Po Fun Chan v Winnie Cheung & Anr (2007) 10 HKCFAR 676). As a leave application of this sort is meant to be a filtering process, I am not expected to give elaborate reasons for my decision (see Re Zunariyah [2018] HKCA 14, at §23).

Discussion

10.Here, the Applicant has not identified or set out any grounds of judicial review. There is hence no allegation of any procedural unfairness in relation to, any error of law in, and/or any irrationality/failure to meet the enhanced Wednesbury test in, the TCAB Decision.

11.Nevertheless, and given the seriousness of the issues at hand, I have considered the TCAB Decision with rigorous examination and anxious scrutiny, applying the enhanced Wednesbury standard.

12.The TCAB Decision outlined the relevant procedural and immigration history, and the relevant grounds that were considered by the Director, with reference to the Director’s Decision (Paragraphs 1 to 4). It then referred to the nature of and factors relevant to the decision that it had to make, and the conduct of the hearing and its approach relating to the evidence adduced and adopted by the Applicant (Paragraphs 5 to 8).

13.The details of the Applicant’s case were then set out with reference to relevant documents and evidence, followed by a summary of the principles applied by the TCAB/NRCPO in relation to evaluating the evidence, including as to inconsistencies and hearsay (Paragraphs 9 to 13).

14.The TCAB/NRCPO then considered and addressed the evidence, including inconsistencies which it said called into question the Applicant’s credibility. It was said that the consistency of such with objective COI would also be further addressed below, and the TCAB/NRCPO reminded itself of principles relating to inconsistencies, and the standard of proof (Paragraphs 14 to 24).

15.The TCAB/NRCPO then went on to consider Persecution Risk, BOR 3 Risk, BOR 2 Risk, and Torture Risk and concluded that none of them were established. It hence affirmed the Director’s Decision (Paragraphs 15 to 68).

16.Despite my aforesaid examination and scrutiny, I do not see that it is reasonably arguable that there is procedural unfairness (bearing in mind the need for a high standard of fairness), an error of law, and/or irrationality/failure to meet the enhanced Wednesbury test which vitiates the TCAB Decision. In particular:

a.  In relation to Persecution Risk the TCAB/NRCPO found in particular, and as it was entitled to, that there was no well-founded fear that the Applciant would be persecuted upon being refouled to Bangladesh. This was based in part on its assessment of the relevant evidence adduced by the Applicant, and in part because (having had regard to relevant COI) state protection was available. It also similarly held, as it was entitled to, that on the relevant evidence there was a failure to establish BOR 3 Risk and Torture Risk. I consider that it gave adequate reasons for such conclusions and findings, which are primarily within the province of the TCAB/NRCPO; and

b.  Given the TCAB/NRCPO’s rejection of BOR 3 Risk and the lack of any public law basis for criticising such, the Applicant’s claim based on BOR 2 Risk was and is bound to fail in any event (See RM v Muttrie (HCAL 166/2015, 3 March 2016) M. Ng. DHCJ. (as she was then) at §52, Kulwinder Kaur [2022] HKCA 49 at §§54-59, Sandhu Vinny [2022] HKCFI 2327 at §§24-26, Sandhu Vinny [2023] HKCA 1261 at §§30, 32-33).

17.In light of the above, I see no public law basis to intervene, and I am not satisfied that there are any reasonably arguable grounds for judicial review which enjoy a realistic prospect of success.

Conclusion

18.In the circumstances, I have ordered that the Form 86 be amended as described above, and that the application for leave to apply for judicial review be dismissed.

Dated the 31^st 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