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

HCAL 752/2020

[2025] HKCFI 3060

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 752 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, and inserting “of Torture Claims Appeal Board/Non-Refoulement Claims Petition Office” before the word “DATED”;

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 23 April 2020 (“Form 86”), which was accompanied by a supporting Affirmation also dated and filed on 23 April 2020 (“the Affirmation”), the Applicant sought leave to commence a judicial review of a decision dated 17 April 2020, without specifying who had made it.

2.The Applicant did not seek an oral hearing. I have hence dealt with her application on the papers.

3.The only decision dated 17 April 2020 that is relevant to the Applicant is one of the Torture Claims Appeal Board (“TCAB”)/Non-Refoulement Claims Petition Office (“NRCPO”) made on that date (“the TCAB Decision”) which concerned and rejected the Applicant’s claim for non-refoulement relief on the basis of Torture Risk[1], BOR 2 Risk[2], BOR 3 Risk[3], and Persecution Risk[4].

4.Although no documents are exhibited to the Affirmation, it does say that the Applicant wants to judicially review “the refusal decision of the appeal of the [TCAB/NRCPO]. Their decision is unreasonable and unfair.”.

5.Prior to the TCAB Decision, the Director of Immigration (“the Director”) had in a decision dated 28 August 2019 (“Director’s Decision”) rejected the Applicant’s non-refoulement claims on the same bases of risk.

6.The Form 86 does name the Director as the putative Respondent and apparently also as the putative Interested Party. However, in the circumstances I do not see that the Applicant was clearly seeking leave to commence a judicial review of the Director’s Decision.

7.In any event, if and insofar as she apparently seeks such leave, that application would stand only to be rejected and I do so, given both the existence and implications of the two-tier system and the lack of exceptional circumstances justifying such an application (Moshsin Ali [2018] HKCA 549; Yeni Setyawati v Torture Claims Appeal Board [2019] HKCA 1310).

8.I have therefore amended the Form 86 of my own motion to clearly identify the decision in question, the proper putative respondents, and the proper putative interested party.

Background

9.The Applicant’s background and case as to the incidents underlying her claim for non-refoulement relief, and the immigration and procedural history (including the documents by which she raised her claim and which were before the TCAB/NRCPO) leading up to the TCAB Decision, are set out in the TCAB Decision (Paragraphs 1 to 20). 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 will be harmed or killed by unknown men whom she suspects are linked to Mr. Shamim Osman (“Osman”) an Awami League (“AL”) Member of Parliament (“MP”) in Bangladesh. She also believes she may face problems from the family of her former employer, one Mr Kodu (“Kodu”) as she is too scared to testify against Osman’s men regarding their assault on Kodu.;

b.  Her claim for non-refoulement relief on the basis of Torture Risk, BOR 3 Risk, BOR2 Risk, and Persecution Risk was first raised on 16 June 2019, and was rejected as not being substantiated by the Director in the Director’s Decision, against which the Applicant filed a Notice of Appeal/Petition on 4 September 2019; and

c.  The TCAB/NRCPO held an oral hearing on 15 January 2020 at which the Applicant gave evidence, and which was conducted with the assistance of a Bengali-English interpreter.

10.The TCAB/NRCPO found and set out in the TCAB Decision (as set out therein and for reasons which I have analysed in more detail below) that the Applicant was not entitled to non-refoulement protection on the relevant grounds, refused her appeal/petition, and confirmed the Director’s Decision.

Legal Principles

11.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).

12.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 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 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.

13.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

14.The Applicant has merely complained in the Affirmation that the TCAB Decision is “unreasonable and unfair”, but has not attempted to explain or identify the details in support of such of allegations, let alone (given the nature of judicial review proceedings, which are not an appeal) whether and how such amount or relate to 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.

15.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, and bearing in mind the need for a high standard of fairness, to see if there was any procedural unfairness, error of law, and/or any irrationality/failure to meet the enhanced Wednesbury test, which vitiates the TCAB Decision. In the process, I have borne in mind the aforesaid allegations of the Applicant.

16.After outlining the the relevant procedural and immigration history, including the relevant grounds and the Applicant’s overall case (Paragraphs 1 to 20) the TCAB/NRCPO set out the facts which it accepted, its approach to making findings on relevant factual matters and credibility (Paragraph 21), how it had assessed credibility (including on giving the benefit of the doubt), but also that on all of the evidence before it, the TCAB/NRCPO had “cumulatively significant concerns regarding the truth of central aspects of the claims and evidence advanced”, and that it would below set out its “concerns, considerations, assessment, reasons, and findings regarding the Applicant’s circumstances” below (Paragraphs 22 to 23).

17.The TCAB/NRCPO then proceeded to set out such matters. In doing so, it went into some detail on various salient issues with reference to evidence (including documents, COI, and oral evidence at the hearing) before it. Pursuant to such the TCAB/NRCPO found that the concerns were cumulatively significant and were not overcome by the Applicant’s responses or evidence overall, did not accept the evidence or truth of various central aspects of the claims made[5], and held that it was not satisfied that on the totality of the evidence before it that the Applicant faced a real risk of being harmed in Bangladesh in the reasonably foreseeable future for any of the reasons claimed or arising on the evidence (Paragraphs 24 to 53).

18.The TCAB/NRCPO then went on to consider Persecution Risk, BOR 3 Risk, BOR 2 Risk, and Torture Risk. It concluded (as it was entitled to and given its previous findings) that none of them were established. It then further concluded (again as it was entitled to) that the Applicant was not entitled to non-refoulement protection on the relevant grounds, refused her appeal/petition, and confirmed the Director’s Decision (Paragraphs 54 to 75).

19.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), error of law, and/or irrationality/failure to meet the enhanced Wednesbury test which vitiates the TCAB Decision. This is particularly so as to the assessment, reasoning, and findings rejecting the Applicant’s evidence and facts underlying her claim, the risk of harm, and consequently Persecution Risk, BOR 3 Risk, and BOR 2 Risk, all of which are primarily within the province of the decision-making body.

20.In light of the above, I see no reasonably arguable grounds for judicial review which enjoy a realistic prospect of success, including any which could be premised on or related to the Applicant’s vague and unparticularised claim that the TCAB Decision was “unreasonable and unfair”.

Conclusion

21.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