MIAH MUSA v. TORTURE CLAIMS APPEAL BOARD

HCAL 967/2020

[2025] HKCFI 3332

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 967 OF 2020

Application for leave to apply for judicial review

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

Following:

	consideration of the documents only; or
	consideration of the documents and oral submissions by the applicant in open court;

1.  On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board”, and the decision in respect of which relief is sought be amended to “Torture Claims Appeal Board’s decision dated 8 May 2020”.

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 22 May 2020, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of two decisions, namely:-

(1)  “The decision made on unknown date but notice on of 07 March 2019”; and

(2)  the decision of the Torture Claims Appeal Board (“the Board”) dated 8 May 2020 (“the Board’s Decision”).

2.  In relation to the applicant’s claim for non-refoulement protection, the Board made the Board’s Decision to dismiss the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) made on 22 February 2019 (“the Director’s Decision”).

3.  It seems that the decision with unknown date could be the Director’s Decision, as the applicant mentioned in his supporting affirmation dated 22 May 2020 that the Leave Application was in respect of the decision of the Director rejecting his torture claim as well.

4.  However, only the Board’s Decision is reviewable by judicial process and not the Director’s Decision, as there are established statutory procedures of appeal from the Director to the Board and the applicant had invoked those procedures. The Director’s Decision was superseded by the Board’s Decision and is no longer susceptible to judicial review (see Re Moshsin Ali, [2018] HKCA 549).

5.  Thus, this court will only consider the Leave Application in respect of 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/HCAL000967_2020_files/the_Board's_Decision.pdf

6.  The Board found that the applicant did not face any of the risks covered by all the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board dismissed the applicant’s appeal/petition and confirmed the Director’s Decision.

Amendments

7.  In Form 86, the applicant named “Torture Claims Appeal Board, Non-Refoulement Claims Petition Office” as the putative respondents, when only the Board should be named as the putative respondent.

8.  The Non-refoulement Claims Petition Office is just an office which provides administrative and secretariat support to the adjudicators of the Board and should not be named as a putative respondent at all.

9.  Thus, this court makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board”.

10.  As aforesaid, the applicant cannot apply for leave in respect of the Director’s Decision but only the Board’s Decision. Hence, on this court’s own motion, the decision in respect of which relief is sought is amended to the Board’s Decision.

The applicant’s case

11.  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.

12.  In sum, the applicant claimed for non-refoulement protection because if refouled to Bangladesh, he, being the General Secretary of the Chhatra Dal (“CD”), the student wing of the Bangladeshi Nationalist Party (“BNP”) in the Bidyakut Union, would be in danger of death or other harm from the Awami League (“AL”) and the government. The main ground for his fear was that he had been convicted in absentia on false charges and sentenced to life imprisonment. He feared that if he faced an unfair trial, he would be sentenced to death. He also feared that he would face extra-judicial killing by the Rapid Action Battalion.

Oral hearing

13.  The applicant requested for an oral hearing of the Leave Application and his case was heard on 22 May 2025.

14.  At the hearing, the applicant said that he fled to Hong Kong for safety of his life and he asked for permission to continue to stay here. When asked to give his grounds for the intended judicial review, the applicant confirmed that the Board had already considered all the circumstances of his case and he had nothing to add.

Grounds for judicial review

15.  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).

16.  However, the applicant failed to identify any ground for the intended judicial review in Form 86, nor in his supporting affirmation.

17.  As aforesaid, the applicant also failed to advance any valid ground for judicial review during the oral hearing.

Discussion

18.  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).

19.  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 specific ground being advanced by the applicant for the intended judicial review.

20.  In assessing the appeal/petition by the applicant, the Board arranged an oral hearing on 14 November 2019 and the applicant was present at the hearing. Hence, the applicant did have the opportunity to present all his evidence and proof to the Board. The Board did assess the alleged danger that the applicant would face if refouled to Bangladesh.

21.  After due consideration of the law and the evidence of the applicant, the Board concluded that there was not a real risk that the applicant would face any of the proscribed forms of harm should he return to Bangladesh. The Board expressly found that three of the four documents adduced by the applicant, namely: the letter from his lawyer for the case GR 122-16; the court judgment and sentence in GR 122-16; and the arrest warrant in GR 105-18 dated 25 April 2018, were not genuine documents, and the applicant was a witness of damaged credibility.

22.  The Board added that even if those documents were genuine and the applicant was falsely convicted on inadmissible evidence, he would still have legal recourse to appeal against the conviction.

23.  The Board went on to assess the applicant’s claim that he was a CD office-bearer and threatened by local AL members. However, the Board found that even if the document showing his membership and position in BNP and CD were genuine, the alleged threats from local AL members on their own were hardly any basis for a finding of a real risk of death, torture, cruel, inhuman or degrading treatment or punishment, or persecution. Moreover, on the applicant’s evidence, he managed to avoid them by moving to other parts of Bangladesh and staying there for nearly two years without trouble.

24.  The Board also made a note that the applicant managed to avoid the police and to cross borders into India and Nepal, and to return in that period. Even granted that he could employ agents to bribe his way across the borders, he could not explain why he would return to Bangladesh, knowing that he was wanted as a suspect for a bomb attack murder. As such, on the totality of evidence, the Board found that his case was incredible, and he did not face a real risk on any of the applicable grounds under the USM that warranted non-refoulement protection.

25.  The Board did not consider availability of state protection and viability of internal relocation. However, as the applicant’s claim and the matters giving rise to his claim for non-refoulement protection were rejected in their entirety, it is therefore not necessary for the Board to consider the availability of state protection.

26.  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).

27.  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 consider internal relocation.

28.  The assessment of evidence, country of origin information and risk of harm was primarily within the realm of the Board. The Board was entitled to come to its own conclusion. If the applicant is seeking to challenge the Board’s finding of facts, it is not permissible in an application for judicial review. This court finds nothing wrong or unreasonable in the way the Board reached its decision.

29.  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.

30.  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

31.  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