MADBAR ABDUL SALAM v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1424/2021

[2026] HKCFI 2230

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1424 of 2021

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

1.   Form 86 be amended, adding the Torture Claims Appeal Board/Non-refoulement Claims Petition Office as the Putative Respondent and naming the Director of Immigration as the Putative Interested Party.

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

Observations for the Applicant:

Introduction

1.  By Form 86 filed on 12 October 2021, the Applicant seeks leave to apply for judicial review (the “Leave Application”) of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board”) (the “Board’s Decision”) dated 9 September 2021.  By that decision, the Board confirmed the decision of the Director of Immigration dated 23 November 2016 (the “Director’s Decision”), which had rejected his non-refoulement claim on all applicable grounds under the Unified Screening Mechanism (USM).

2.  The Applicant’s background, the basis of his claim and the arguments he advanced had been set out in detail in the Board’s Decision.  It is not necessary for me to repeat the same here.  Unless otherwise specified, the abbreviations and descriptions used in the Board’s Decision, the hyperlink[1] to which is included below, are also adopted herein.

3.  The Applicant attended the oral hearing and informed me that he wishes to return to his own country in 5 to 6 months’ time but he also made it clear that he does not wish to withdraw the Leave Application.  I have therefore proceeded to consider the Leave Application.

Discussion

4.  Judicial review does not operate as a further avenue of appeal.  The Leave Application operates as a “filtering” process and there is no requirement or expectation to give elaborate reasons for my decision.[2]  In seeking to challenge the Board’s Decision, the Applicant ought to have clearly and precisely identified the grounds relied upon in the Form 86 and in his supporting affirmation.  As the matter stands, the Applicant has failed to identify any valid or effective public law grounds.[3]

5.  In view of the seriousness of the issues involved, I have reminded myself of the enhanced standard required by law.  Despite the Applicant did not advance any valid ground for the intended judicial review, I have scrutinized the Board’s Decision for any errors of law, procedural unfairness or irrationality.

6.  I am not satisfied that the Applicant’s intended application for judicial review of the Board’s Decision is reasonably arguable with any realistic prospects of success.[4]

7.  First, the primary decision makers are the Director of Immigration and the Board and the Court should not usurp the role of the Board.  Assessment of evidence, country of origin information (COI) materials, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director of the Immigration).[5]

8.  The Board was acutely aware of the Applicant’s claim that he is a supporter of BNP in Bangladesh and that he faces serious harm or death from various individuals of AL because (1) he witnessed the murder of his cousin by them back in 2002 or 2003 and (2) he is associated with the opposition political party i.e. BNP.  

9.  The Board had assessed the material facts and evidence of the Applicant’s claim including the COI materials.  The Board accepted his claim that he actually sighted and observed the dead and the injured, but he did not actually witness the shooting events nor was he identified or suspected by any of the accused as being a witness or an informant or complainant to the police. Further, the Board found that he was not a BNP leader or activist and he had no profile as such a person.  The Board therefore rejected his claim that he was subsequently targeted and would still be targeted after so many years, for serious harassment, threat or any harm by the AL members by reason of (1) charges that have flown from the killings of his cousins; (2) having failed to pay the claimed killers money sought to extort from him; and (3) his alleged association with or support of BNP.  In any case, the Board did and was entitled to find adequate state protection is available and internal relocation within Bangladesh is viable and the same will not impose unreasonable hardship on the Applicant.

10.  Second, it follows that the Board was quite simply entitled to come to the conclusions it did.  There is nothing to indicate the Board had failed to take into account any relevant matters.

11.  Third, in all circumstances, I can discern no error of law or procedural unfairness or irrationality on the part of the Board in the assessment and rejection of the Applicant’s claim.

Conclusion

12.  Accordingly, I dismiss the Leave Application.

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