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

HCAL 2851/2019

[2025] HKCFI 3863

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2851 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 the Applicant being absent in open court;

1.  The Form 86 be amended on the court’s own motion.

2.  The applicant’s application for leave to apply for judicial review be dismissed.

Introduction

1.  By prescribed Form 86 filed on 27 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 20 September 2019 (“Board’s Decision”) dismissing the applicant's appeal against the decision of the Director of Immigration (“Director”) dated 22 June 2018.  (“Director’s Decision”) rejecting the applicant's non‑refoulement claim on applicable grounds other than torture risk^[1]. The torture risk ground was covered by a prior decision of the Director dated 30 September 2013.

2.  In his Form 86, the applicant named the Board and the Director together as the proposed respondents and interested parties.  As the Board should have been the proper proposed respondent and the Director the proper proposed interested party, Form 86 will be amended accordingly on the court’s own motion.

3.  Pursuant to the applicant’s request for a hearing of the Leave Application, this court scheduled a hearing on 5 June 2025.  A notice of hearing with a reminder[2] of the consequence of absence dated 12 May 2025 was sent to the applicant’s last known address by ordinary post.  The applicant did not turn up at the hearing.  A telephone call was made to the applicant’s given telephone number before the hearing, but to no avail. The information before this court shows that the said notice of hearing has not been returned undelivered through the post.

4.  In the circumstances, this court will dispose of the Leave Application according to the materials already placed before the court.

Background

5.  The background as taken from the Director’s Decision and the Board’s Decision can be briefly stated as follows.

6.  The applicant is a national of Bangladesh. He was arrested by police in Hong Kong for illegal remaining on 14 June 2013. He claimed to have entered Hong Kong without permission on the same day.  The applicant lodged his non‑refoulement claim on 22 June 2013.

7.  The applicant’s claim was considered under all applicable grounds other than torture risk, i.e. BOR 2 risk^[3], BOR 3 risk^[4] and persecution risk^[5] under the USM.^[6]  The claim was based on a fear that if refouled, he would be harmed or killed by members of the Awami League (“AL”) and due to his membership in the Islamic Chhatra Shibir (“CS”), which is the student wing of the rival Jamaat-e-Islami (“JI”).

8.  According to the applicant, he joined CS in 2011.  On 15 March 2013, JI organized a strike, and CS held a rally to support the strike, whereas the AL held its own rally to oppose JI and CS.  Members of the opposing parties came to blows.  The applicant also participated in the strike but he was not injured.

9.  Subsequently, on 21 March 2013, a group of AL members punched the applicant repeatedly and beat his fellow CS members with sticks, physically assaulted the applicant and three other CS members.  In this incident, the applicant was not seriously injured and did not require medical treatment from a doctor.

10.  On 10 April 2013, the AL assailants from the 21 March assault, together with 12 additional AL members damaged the shop of the applicant’s father and beat the applicant with sticks all over his body.  As a result, his nose and mouth bled, and his body, legs and hands were injured.  He consulted a village doctor who prescribed pain killers, but that doctor did not keep proper records of the injury.  It took around a month for the applicant to recover fully.

11.  On 18 April 2013, the applicant, together with his parents and maternal uncle, reported the two assaults to the Munshiganj police, but the police refused to take any statement.  The officer-in-charge stated that they had received instructions from an AL Member of Parliament not to accept any complaints against the AL members.  In the same evening, while the applicant was away from his home, the AL members went to his home, told his mother and sister that they were aware that he tried to file a police case against them. Before they left, they vandalized his home and threatened to kill the applicant if they found him.

12.  The applicant’s mother therefore told the applicant to leave their village.  He moved to Mirpur, Dhaka and stayed with his maternal aunt for one and a half months, before fleeing from Bangladesh.

13.  In the Director’s Decision, the Director decided against the applicant’s claim on all applicable grounds. Hence, the applicant’s appeal to the Board against the Director’s Decision.

14.  On 6 August 2019, the applicant attended a hearing before the Board.  At the Board hearing, the applicant gave oral testimony and answered questions from the Board.  

15.  The Board rejected the claim as it found that the applicant’s injuries did not attain a minimum level of severity. The Board also assessed his evidence as unreliable.  The Board also found that state protection would be available and that internal relocation would be viable.  Thus, the Board found that there was no real risk of harm, and dismissed the appeal and confirmed the Director’s Decision.

Legal principles applicable to judicial review

16.  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

17.  In his Form 86 and supporting affirmation, the applicant stated that the Board’s Decision had not carefully considered his case and that it was unreasonable. The Board failed to consider all the matters raised in the claim and/or the Board did not give adequate reasons. 

18.  The Board’s Decision was arrived at after having carefully examined the applicant’s evidence.  The Board’s findings stated above on the applicant’s unreliability and state protection as well as internal relocation are findings of fact, which the court in a judicial review will not interfere with, in the absence of any error of law, procedural unfairness or irrationality.

19.  Bearing in mind the enhanced standard that should be adopted in scrutinizing the Board’s Decision, this court is satisfied that the Board correctly applied the law relating to all the grounds and observed a high standard of fairness.  The applicant has not shown any errors of law or procedural unfairness or irrationality in the Board’s Decision.  The applicant’s intended challenge to the Board’s Decision is not reasonably arguable with realistic prospects of success such that would enable this court to grant leave[7].

Orders

20.  The Form 86 be amended on the court’s own motion.

21.  The applicant’s application for leave to apply for judicial review 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

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