MADBAR MD SAYED v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2785/2019

[2025] HKCFI 1124

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2785 of 2019

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;

The Leave Application be dismissed.

Observation for the Applicant:

Introduction

1.  By prescribed Form 86 filed on 23 September 2019, the applicant applied for leave to apply for judicial review (“Leave Application”). The intended judicial review was against the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) dated 29 August 2019 (“Board’s Decision”) dismissing the applicant's appeal against a decision of the Director of Immigration (“Director”) dated 6 June 2018 (“Director’s Decision”) rejecting the applicant's non‑refoulement claim.

2.  Pursuant to the applicant’s request for a hearing of the Leave Application, this court held a hearing on 12 March 2025. The applicant attended the hearing in person. After having heard from him, this court informed him that the decision would be reserved, and be sent to his updated address.

Background

3.  The background as taken from the respective decisions of the Director and the Board referred to above can be briefly stated as follows.

4.  The applicant is a national of Bangladesh. He was arrested by police in Hong Kong on 8 October 2015 on suspicion of being an illegal immigrant, and was referred to the Immigration Department for investigation. Upon enquiry, he claimed to have entered Hong Kong illegally on 8 October 2015 by sea from mainland China. The applicant lodged a non-refoulement claim on 10 October 2015. The applicant’s claim was considered under all applicable grounds i.e. torture risk[1], BOR 2 risk[2], BOR 3 risk[3] and persecution risk[4] under the USM.[5] The claim was based on a fear that if refouled, he would be harmed or killed by Awami League (“AL”) supporters due to his support for the rival Bangladesh Nationalist Party (“BNP”).

5.  The applicant claimed that he joined the BNP around 2010. In January 2014, AL won the election. Several months after the election, about 20-25 members of AL attacked the applicant with long knives and wooden sticks. The applicant’s left lower leg and right upper arm were stabbed. The applicant’s wife and brother took him to a local clinic for medical treatment. The applicant’s report of this attack to the police was rejected as the police were under the instruction of AL. To avoid his enemies, the applicant moved to his sister’s home at Palong. During the 1 month’s period when he was staying with his sister, the applicant continued receiving threatening messages from the AL. The applicant therefore decided to leave his country in October 2015. The applicant claimed that internal relocation was impossible, as he did not have any relatives or friends in other places who could support him on a long-term basis.

6.  In the Director’s Decision, the Director decided against the applicant’s claim on all applicable grounds. The Director assessed the claimed risk of ill-treatment to have been low because the applicant’s injuries did not attain the minimum level of severity. After having considered the country of origin information reports (“COI”), the Director was satisfied that state protection was available and that internal relocation alternatives were available and reasonable. Hence, the applicant’s appeal to the Board against the Director’s Decision.

7.  On 11 June 2019, the applicant attended a hearing before the Board, during which the applicant answered questions from the Board.

8.  The Board found that there was no real risk of harm. The Board found that there were material inconsistencies between his written claims and his oral evidence before the Board. The Board found that the applicant’s evidence in relation to his claimed political involvement and the attack on him incredible. The Board found that the applicant failed to establish that there were ‘substantial grounds’ which supported the conclusion that he would face a real risk of ill-treatment as claimed he re-fouled. The Board dismissed the applicant’s appeal and confirmed the Director’s Decision.

Legal principles applicable to judicial review

9.  As the Courts have repeatedly stated, determination of the merits of a non‑refoulement claim is essentially a matter for the Director and the Board, who are the primary decision-makers in the evaluation of the evidence based on the materials available to them. A court will not usurp their primary decision-making role in a judicial review, which is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh in the absence of any legal error. A finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

Discussion and conclusion

10.  The applicant’s Form 86 and supporting affirmation did not contain any grounds for seeking relief.

11.  At the hearing, this court asked the applicant whether he had any grounds he wished to submit in support of the Leave Application. The applicant only told this court that there were still a lot of problems with the current government in Bangladesh and it was not safe for him to return. When asked if he could specify mistakes or errors the Board had made in the Board’s Decision, the applicant replied that there was none.

12.  It is plain that the applicant has not condescended to any particulars, in the Form 86 or otherwise, as to what basis the Board is said to have acted unlawfully or procedurally unfairly in reaching its Decision, or how such Decision could be said to be Wednesbury unreasonable.

13.  The Board’s Decision was arrived at after having carefully examined the applicant’s evidence. It found that the applicant’s claim was not credible due to material inconsistencies for which the applicant was unable to satisfactorily explain. Thus, there was no real risk of harm. These are findings of fact, which the court in a judicial review will not interfere with.

14.  Having rigorously examined the Board’s Decision with anxious scrutiny, this court is satisfied that the Board correctly applied the law and the key legal principles relating to all the grounds mentioned above; correctly identified the issues, and observed a very high standard of fairness in the Decisions of the Director and the Board. I find that it was perfectly open to the Board to come to its conclusion that the applicant failed to discharge his burden of proving the asserted fears and risks.

15.  For these reasons, I am not satisfied that the Leave Application is reasonably arguable with realistic prospects of success such that would enable this court to grant leave: see Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

Order

16.  The Leave Application be 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