MD CHAN alia MDCHAN v. TORTURE CLAIMS APPEAL BOARD

HCAL 2028/2020

[2025] HKCFI 5598

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2028 OF 2020

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

1.  On this court’s own motion, “Director of Immigration” be added as the putative interested party.

2.  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 8 October 2020, 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 5 October 2020 (“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/2020/HCAL002028_2020_files/the_Board's_Decision.pdf

2.  The Board found that the applicant’s claim for non-refoulement protection failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”).  Hence, the Board affirmed the decision of the Director of Immigration (“the Director”) dated 3 June 2020, which rejected his non-refoulement claim.

Amendments

3.  The applicant did not name any putative interested party in Form 86, when the Director should be so named.

4.  Thus, this court makes an order on its own motion to add “Director of Immigration” as the putative interested party.

The applicant’s case

5.  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.

6.  In sum, the applicant claimed for non-refoulement protection because if refouled to Bangladesh, he would be at risk of losing his life as the Awami League (“AL”) government had already sentenced the leader of his party, the Bangladesh Jamaat-e-Islami (“BJI/Jamaat”), to death and he would meet the same fate.

Oral hearing

7.  The applicant requested for an oral hearing of the Leave Application and his case was heard on 16 September 2025.

8.  When this court asked the applicant to elaborate on the grounds for his intended judicial review which were stated in his affirmation, he merely said that there were political issues in his country and he might be attacked again.  However, he confirmed that his problems in Bangladesh had all been presented to the Board.

Grounds for judicial review

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

10.  The applicant did not advance any grounds for his intended judicial review in Form 86.  In his supporting affirmation dated 7 October 2020, he asserted that (1) he was a genuine non-refoulement claimant and faced dangerous problems, harassment and torture in his country; (2) the Director reached the wrong decision without proper inquiry; and (3) his problems were getting more and more life-threatening.

11.  As mentioned, the applicant did not elaborate on any of the above-mentioned general grounds at the oral hearing before this court, and he confirmed that he had presented all his political problems to the Board.

Discussion

12.  First of all, the Director’s Decision was superseded by the Board’s Decision and is no longer susceptible to judicial review (see Re Moshsin Ali [2018] HKCA 549).  The complaint against the Director’s Decision can simply be ignored.  This court will deal with the Leave Application in respect of the Board’s Decision only.

13.  Secondly, the applicant’s danger and problems had all been considered by the Board.  If the applicant intends to challenge the Board’s finding of facts, it is not permissible in a judicial review.

14.  Thirdly, the Court of Appeal has repeatedly held that general assertions without particulars cannot be effective grounds to support a judicial review (see Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578; and Re Kharsu Numan [2019] HKCA 626).  Further, 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, the general assertions put forward by the applicant in his supporting affirmation cannot help him at all.

15.  This court therefore finds that none of the grounds advanced by the applicant constituted a valid ground to challenge the Board’s Decision.

16.  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).

17.  Thus, this court will examine and scrutinize the Board’s Decision for any errors of law, procedural unfairness and irrationality, despite the lack of any valid ground being advanced by the applicant for the intended judicial review.

18.  In assessing the appeal by the applicant, the Board arranged an oral hearing on 24 September 2020 and the applicant was present.  Thus, the applicant was given the opportunity to present his case to the Board in person.

19.  Having considered all the evidence and country of origin information (“COI”), which were extensively discussed with the applicant, the Board found most, if not all, of the core assertions to the applicant’s non-refoulement claim had been fabricated or was wholly unreliable.  In particular, the Board did not accept the applicant’s claimed profile as an active and prominent political supporter of BJI/Jamaat.  The Board thus rejected and did not accept that the applicant’s so-called political activity had placed him at risk of harm from the Bangladesh Nationalist Party and/or AL.

20.  As to the applicable grounds under the USM, the Board found no reliable evidence to show that (1) any public official or persons able to wield the authority of the government and/or state had any connection with the alleged maltreatment of the applicant; (2) the government and/or state and/or authorities in Bangladesh had acquiesced in the alleged ill-treatment; (3) the applicant had suffered physical and/or mental suffering of the requisite severity; (4) the alleged perpetuators ill-treated the applicant with an intention listed in the definition of torture in section 37U of the Immigration Ordinance; (5) the state or government was unwilling or unable to afford protection to the applicant; and (6) the state or government of Bangladesh was unwilling to help the applicant for a Convention reason.

21.  Moreover, the Board found no evidence to indicate that the applicant would not be afforded the requisite level of protection from the government of Bangladesh.

22.  Based on the findings as summarised above, the Board considered that it was not necessary to make findings on internal relocation for the applicant.  

23.  Thus, the Board concluded that the applicant had failed to substantiate a case for non-refoulement protection on any of the applicable grounds under the USM.

24.  Although the Board did not make findings 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 he 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 his home area (see Gardi v SSHD [2002] 1 WLR 2755).

25.  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 further consider internal relocation.

26.  The assessment of evidence, COI and risk of harm was primarily within the realm of the Board.  The Board was entitled to come to its own conclusion.  This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.

27.  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. 

28.  As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, for the court to grant leave to apply for judicial review, the claim has to be a reasonably arguable claim which enjoys 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

29.  For reasons aforesaid, the Leave Application is 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