BEGUM LAILA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE [Decision on Leave Application]

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

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

Observations for the Applicant:

1.  By a Form 86 filed on 29 July 2021 (“Form 86”), the Applicant sought leave for judicial review of the decision of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (“TCAB”) made on 16 July 2021 (“the TCAB Decision”). The TCAB Decision was made pursuant to a notice of appeal/petition against the Director of Immigration (“DI”)’s tier‑one decision dated 18 March 2021. The TCAB and the DI have been identified as respectively the putative respondent and putative interested party to this application.

2.  The Applicant is a Bangladesh national.  Her claim was based on a fear that she would be harmed or killed by her former husband because she gave birth to a child with another man in Hong Kong.  She was also in fear of the ex-husband’s family and creditors (who would still deem her to be responsible for the ex-husband’s debt).

3.  After an intense factual inquiry, the TCAB came to the view that the Applicant’s claim about what the aforesaid people had done to her in the past was not credible.  While the birth of a son in Hong Kong was accepted and objective information indicating widespread discrimination against women in Bangladesh was noted, the TCAB took note of other information that such societal discrimination was not sufficiently serious by its nature and repetition to reach the high threshold of being persecutory or otherwise inhumane or degrading treatment.  The TCAB came to the view that the Applicant would not be subject to the applicable risks should she return to Bangladesh, and reject her appeal/petition against DI’s tier‑one decision.  

4.  The Applicant has failed to identify any alleged errors of law, irrationality or procedural unfairness in the TCAB Decision to make good her challenge either in the Form 86, the supporting affirmation or oral submissions in open court.  I am unable to detect any after a vigorous reading of the TCAB Decision.  It has been reiterated time and again that the primary responsibility for the factual assessment of whether any risk of ill-treatment exists lies with the TCAB.  In the absence of any errors of law, procedural unfairness or irrationality, the Court would not reopen their findings or make a determination on the case afresh.  The role of the Court in a judicial review is not to provide a further avenue of appeal (see Re Lakhwinder Singh [2018] HKCA 246).  The leave application to apply for judicial review is thus dismissed.

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